GUNNAM LAKSHMIPATHI Vs. YADLAPALLI VEERA VENKATA SUBBARAO

JUDGEMENT

(1.) This appeal has come for hearing before us on a reference by our learned brother Sharfuddin Ahmed J. Sanjeeva Row Naidu, J., Who heard C. M. A. No. 237 of 1958 made certain observation regarding the scope of o. 21, Rule 16 C. P. C. while remanding that appeal and following them the lower appellate court allowed the C. M. A. C. M. S. A. A. No. 95 of 1961 is directed against that decision. Sharfuddin Ahmed J., was not prepared to accept the correctness of the view expressed by Sanjeeva Row Naidu, J. as it was contrary to bench decisions of the Madras High Court, namely Ramayya v. Krishnamurthi, ILR 40 Mad 296 : ( AIR 1917 Mad 590 ) and a. Venkataratnam v. Annabattula Nayudu, 28 Ind Cas 906 : (AIR 1915 Mad 799) and hence referred the Appeal to a Bench.

(2.) In order to fully appreciate the contentions raised by the appellant , the antecedent facts may briefly be noticed. One Boda Subbarao, the 2nd respondent before us, obtained a money decree against Gunnam Lakshmipathi (3rd defendant), the appellant before us and Gunnam Bulli Abbayi (5th defendant) 4th respondent before us, in O. s. No. 8 of 1955 for Rs. 5679-13-0 on the foot of a promissory note executed by them. Yedlapalli Veera Venkata Subbarao, the son-in law of the 5th defendant (who is the 1st respondent before us) filed E. A. No. 139/56 on the file of the Subordinate Judge, Rajahmundry for his being recognised as a transferee of the decree from Boda Subbarao under the transfer deed Ex. A. 1 dated 27-1-1956 for Rs. 6,000.00 that application was opposed only by the 3rd defendant the decree holder and the other defendants having remained ex parte. The contention of the 3rd defendant was that when the decree-holder was about to execute the decree against the 5th defendant, he paid the amount, and obtained a transfer of the decree benami in the name of his son-in-law, had no means to obtain a transfer of the decree. It was, therefore, alleged by the 3rd defendant that the decree having been satisfied by the payment by the 5th defendant, and the petitioner being only his nominee or benamidar, the transfer could not be recognised under O. 21, Rs. R. 16 C. P. C.

(3.) On a consideration of the evidence and the law bearing on the point, the learned Subordinate Judge held that the decree was discharged by the 5th defendant with his money, but took the transfer benami in the name of the petitioner who is no other than his son-in-law and who was living with him, and consequently refused to recognise the transfer.