INDRA BHUSAN (ROY) SARDAR Vs. RAM KISSEN BINDHANI

JUDGEMENT

(1.) This is an appeal by the opposite party No. 1 in an application by the decree-holders in a Title Execution Case Under Order 21, Rule 97, Civil P.C. The decree was obtained against Kali Pada Roy Sardar who had borrowed goods from the decree-holders upon leaving in deposit the title-deed of a shop, house and land. As the deed appeared to be in the name of Kali Pada's wife's brother, Surendra, the said Surendra was impleaded but he did not appear and defend the suit. Kali Pada's son Indra Bbusan, the present appellant, was also impleaded in the suit. He filed a written statement disclaiming any interest in the shop. In the result, the suit against him was dismissed and the suit was decreed against Kali Pada who however did not pay the decretal sum. Then the shop and the land on which it stood, were sold in execution of the decree. Thereupon the judgment-debtor Kali Pada vainly applied to set aside the sale. After he had failed, his son, the present appellant, opposed the decree-holders. Thereupon she decree- holders filed the present application.

(2.) The learned Subordinate Judge has found on the evidence of the two sides, that though the title-deed of the land was in the name of Kali Pada's wife's brother Surendra and the said Surendra had afterwards purported to execute a deed of gift transferring his rights to his nephew, the present appellant, in fact the property belonged to Kali Pada who prepared the two benami deeds for the purpose of defrauding the creditors if and when occasion arose, for the same. The trial Court found that the appellant and the opposite party No. 2 offered resistance to the delivery of possession at the instigation of the judgment-debtor. The trial Court, accordingly, ordered that the decree-holders do get possession of the property. In this appeal, a preliminary objection is taken by the learned advocate for the respondents that as this order having been made Under Order 21, Rule 97, there is no appeal allowed by the Code. It is conceded by the appellant that the Code does not directly provide an appeal from an order passed Under Rule 97, Order 21. But in this case the auction-purchaser was not a third person but the decree-holder himself, and the opposite party Indra Bhusan was a party to the suit as he had been impleaded as a defendant and the suit against him had been dismissed. Therefore the dispute between them conies under the provisions of Section 47 of the Code, and as all orders passed under that section operate as decrees, there is an appeal in this case. In support of this view, the Full Bench case of Kailash Chandra V/s. Gopal Chandra AIR 1926 Cal 798 has been cited. This ruling is binding on us. We must therefore hold that an appeal lies in this case.

(3.) Upon the facts it has been urged by the learned advocate for the appellant that the Court below was, wrong to find that the two deeds in this case were benami, and that upon the evidence it should be held that the property was purchased by Surendra and he really and truly made a gift of it afterwards to the present appellant. Upon hearing the learned advocates upon consideration of all the facts and circumstances of this case, we are of opinion that the trial Court was right to hold that both the documents were benami, and that they were fictitious and colourable deeds prepared simply for the purpose of defrauding creditors, if occasion arose. It is next urged that even if the opposite party No. 1 be said to have acted at the instigation of his father, the judgment-debtor Kali Pada, the Court committed an error in awarding delivery of possession to the decree-holders against the opposite party No. 2 whom the decree-holders stated in their petition to be a tenant-at-will under the judgment-debtor. It is urged that the opposite party No. 2 should be kept as a tenant under the decree-holders. As to this, it is pointed out by the other side that the opposite party No. 2 has not filed an appeal to this Court, and therefore this point does not arise. In the result this appeal is dismissed with costs, hearing-fee three gold mohurs. Lort-Williams, J.