JALDU BALASUBRAMANIAM CHETTY Vs. DKOTHANDARAMASWAMI NAYANIM VARU

JUDGEMENT

(1.) The question which has been referred reads as follows: Whether it is open to a person who is not eo nomine the decree-holder or the transferee of the decree, to apply for its execution on the ground that he is the real owner?

(2.) As we intend to confine our answer to a case where the facts are similar to those of the present case, it is necessary for us to state them, in so far as they are relevant to the question. One Nookala Manickamma sued the respondents in the Court of the Subordinate Judge of Chittoor to enforce payment of the amount due on a promissory note which had been executed in her favour and on 9 September 1936, she obtained a decree for the payment of Rs. 6175-3-0 with costs. The appellant who was joint with his father alleges that the promissory note constituted an asset of the family and that Nookala Manickamma held it as the benamidar of his father who was the manager. Nookala Manickamma and the appellant's father died before 8 December 1939. On that date the appellant instituted proceedings in execution in the Court of the Subordinate Judge. He claimed to be entitled to execute the decree for two reasons. In the first place, he said that he was the legal representative of the decree-holder and in the second place, that he had become the real owner of the debt embodied in the decree. The Subordinate Judge held that the Court could not go behind the decree and commence an investigation into the question whether it constituted the property of the family then represented by the appellant. He was also of the opinion that the plea that Nookala Manickamma held it as a benamidar could not in law be advanced. Consequently, the Subordinate Judge held that the appellant was not entitled to institute proceedings in execution until he had obtained, as the representative of Nookala Manickamma, a succession certificate in respect of the decree.

(3.) The learned Judges who have made this reference have pointed out in their order that if the property represented by the decree belonged to the joint family consisting of the appellant and his father it was not necessary for the appellant to produce a succession certificate in order to realize it, since it had devolved upon him on the death of his father and they did not agree with the opinion that a person could not hold a promissory note as a benamidar. They felt constrained to make the reference because of the conflict which exists between the decision of this Court in Manikam V/s. Tatayya ( 94) 21 Mad. 388 and Palaniappa Chettiar v. Subramania Chettiar ( 25) 12 A.I.R. 1925 Mad. 701 In the former of these two cases Shepherd and Subramania Ayyar JJ. held that if a, decree is transferred to a person acting as the banamidar for the actual purchaser, the latter was entitled to execute it under Section 232, Civil P.C., 1882. ln that case ond Lakshmisetti Subrayudu obtained a decree for the payment of money and one Patti Subrayudu applied for execution on the ground that he was the transferee of the decree. The appellant alleged that he and his brother were the real transferees and that Patti Subrayudu was merely a benamidar for them. On this footing he himself applied to execute the decree. The learned Judges being of the opinion that the person entitled to the beneficial interest in the decree could apply for execution directed the executing Court to inquire and submit a finding on the question whether Patti Subrayudu was the real transferee or whether the appellant and his brother occupied that position.