PARSANMAL Vs. JETH SINGH

JUDGEMENT

(1.) THIS is an appeal by Parsanmal against the order of the Civil and Additional sessions Judge, Merta, and arises in the following circumstances : in March, 1939, Hansraj obtained a decree for Rs. 10,558/9/6 against jethsingh. The decree was executed by Hansraj a number of times during his life-time. But after Hansraj's death, two persons filed separate execution applications for execution of the decree. These were parsanmal, present appellant, and Dalpatraj, respondent No. 2. Dalpatraj claimed to be the representative-in-interest of Hansraj decree-holder on the ground that he was the adopted son of Hansraj. It is not in dispute that Dalpatraj is the adopted son of Hansraj, and ordinarily therefore Dalpatraj would be entitled to take out execution on the death of his adoptive father Hansraj who was the decree-holder. Parsanmal, however, contended that Hansraj was only Benamidar for the widow of Kishanraj, and that the real decree-holder was this widow. Further, Parsanmal's case was that though Hansraj was the only son of kishanraj, he was adopted by Amritraj long ago, and therefore he could not succeed to the property of Kishanraj. Parsanmal based his own claim to execute this decree on his adoption by the widow of Kishanraj as a son to Kishanraj. Parsanmal's claim thus was that the decree, though ostensibly in the name of Hansraj, was really in favour of Kishanraj's widow as heir of Kishanraj, and as he had been adopted by this widow to Kishanraj, he was now the real owner of this decree and entitled to execute it.

(2.) THE lower Court framed three points which, according to it, required decision. The second of these questions was whether Parsanmal could apply for execution of the decree on the ground that he was the heir of its real owner. The lower Court, however, did not decide this point and dismissed the execution application of parsanmal on the decision of the other two points namely whether Hansraj was only a Benamidar for Krishnaraj, and whether Section 47 applied to a dispute between two persons claiming to represent the decree-holder. It has been urged on behalf of the appellant before us that the second point, which the Court did not decide, should first have been decided. That point raised the question whether it was open to the executing Court to go behind the decree, and allow execution of it by a third person on the ground that the decree-holder was only a benamidar, and that the real owner of the decree was the third person. We shall therefore address ourselves first to this important question.

(3.) THE general principle of law is that the executing Court cannot go behind the decree except in very limited circumstances like the case where the decree is on the face of it without jurisdiction, or the case where it was passed after the death of the defendant. We are of opinion that the complications that arise in Benami suits should not be allowed to be introduced in matters of execution after the decree has been passed. If the person, who filed the suit, was a Benamidar, there was nothing to stop the real owner also to join the Benamidar at the time of the filing of the suit, and thus get a decree in his own favour. Where this is not done, it is, in our opinion, not right to allow the so-called real owner to come forward and claim that the decree is in favour of a Benamidar, and that he has a right to execute it and not the Benamidar. That would, in our opinion, be introducing uncertainty into the proceedings of Court, and we would not be prepared to allow it unless there was any compelling reason justifying it, and unless there was no other remedy for the so-called real owner,