AMBICA PRASAD SINGH Vs. RAM CHARITAR SINGH

JUDGEMENT

(1.) This appeal by the executing decree-holders is directed against an order of the Subordinate Judge at Gaya allowing an application Under Section 47, Civil P. C.

(2.) The decree under execution was obtained by one Puran Dai, proprietress of village Kathar, against Jagmohan Singh and twentythree others for arrears of rent for the years 1338 to 1343 Fasli in respect of a mokarrari tenure in the village. The decree was for an amount of Rs. 9774. After realising Rs. 7000 out of this sum by execution Mt. Puran Dai, on 8-7-1943, Bold her milkiat interest in the village and the balance of the decretal dues to Ambica Prasad Singh, appellant 1, Mahesh Pandey, appellant 2 and one Adit Singh. The shares of these vendees are specified in the sale deed as being 0-5-6 pies, 0-6-6 pies and 0-4-0 annas respectively. Execution was taken out by the two appellants in the year 1946 Under Order 21, Rule 15 and 16, Civil P. C. It was sought against only three of the judgment-debtors, who are residents of Mauza Jarao, the other judgment-debtors being residents of Kathar. The objection Under Section 47 filed by two of these judgment-debtors has succeeded on two grounds : (1) that twelve annas of the decretal dues have been transferred to one or other of the judgment-debtors and, therefore, an application for their recovery by execution does not lie under proviso 2 to Order 21, Rule 16, and (2) that; as to the remaining four annas share, the appellant Ambica Prasad is legal practitioner and, therefore, is debarred by Section 136, T. P. Act, from enforcing by execution a decree obtained by him by assignment. The correctness of the decision is challenged in respect of both these grounds.

(3.) As regards the first ground, the challenge has been somewhat half hearted, the reason being that the case of the applicant judgment-debtors is practically conceded by the execution-petition itself. It seems to have been admitted before the Subordinate Judge that, subsequent to the transaction by which Puran Dai transferred her interest to Ambica Singh and others, there have been several transactions by which Mahesh Pandey and Ambica Singh have transferred portions of their interest to either the-judgment-debtors or to close relatives of the judgment-debtors, the resulting distribution being that from Ambika Singh the daughter-in-law of Odai Nath Singh judgment-debtor has got a share of one and a half annas, and from Mahesh Pandey, Mahabal Singh judgment-debtor, the wife of Basudeo Singh judgment-debtor, the mother of Matukdhari Singh judgment-debtor, daughter-in-law of Jagmohan Singh judgment-debtor and the wife of Ramdeo Singh judgment-debtor have got respectively the shares of ten dams, fifteen dams, fifteen, dams one anna and one anna making a total of four annas, thus leaving Mahesh Pandey with a share of two and a half annas. We find in the execution petition that all these purchasers are named as pro forma judgment-debtors, that is to say, judgment-debtors against whom. no relief is sought in the execution proceeding. Further among the judgment-debtors, we find Adit Singh and in the explanation given in the execution petition, there is a note that he is the farzidar of the wife of Gariban Singh another of the judgment-debtors. The inclusion of all these persons as judgment-debtors clearly supports the case of the appellant-petitioners that these purchases were benami purchases by the judgment-debtors themselves. As regards the two and a half annas share remaining with Mahesh Pandey, the case of the applicant judgment-debtors is that he is the farzidar of the judgment-debtors Chhabinath, whose son-in-law he is. The relationship was denied, but the evidence strongly points to the correctness of the Subordinate Judge's conclusion that he is, in fact, so related. Direct evidence to this effect was given by Earn Charitar applicant (A. W. 2) and Jhako Singh (A. W. 3). The applicant judgment-debtors took the bold course of examining as a witness on their behalf one of the judgment-debtors belonging to village Kathar, in respect of whom the allegation of farzi purchase had been made, namely, Ramdeo Singh. Naturally, the witness did not support the story of the alleged relationship, but instead of a direct denial, he said that he did not know if there is any such relationship. An equal uncertainty was shown by Balbhadar Singh, witness l for the executing decree-holders, who began by a statement that Chhabinath is not the father-in-law of Mahesh Pandey, went on to the pretence that, though Chhabinath is his co-villager and his uncle he does not know if Chhabinath has or has not one daughter and ended by saying that he "cannot deny if Mahesh Pandey is the son-in-law of Chhabinath." This assumption of ignorance, which cannot but be false, speaks for itself, and, if we take this behaviour and consider the purchase in the name of Mahesh along with the numerous purchases in the names of close relatives of the judgment-debtors and relating to small portions of the decree, there can be little doubt that the purchases were, in fact, on behalf of the judgment-debtors. Apparently, the judgment-debtors by a series of purchases are trying to apportion between themselves the liability for satisfying the decretal dues, and execution has been taken out in the present case against the judgment-debtors who belonged to another village and, apparently, have not come into this scheme of adjusting the liability by private transactions.