LAWS(PVC)-1944-2-70

SM LALMANI KUER Vs. SMRAGHUHBANSI DEVI

Decided On February 15, 1944
SM LALMANI KUER Appellant
V/S
SMRAGHUHBANSI DEVI Respondents

JUDGEMENT

(1.) This is a miscellaneous second appeal which is directed against the judgment of the District Judge of Gaya, confirming that of the Munsif of Aurangabad in execution proceedings.

(2.) The appellant is the widow of one Ramautar Lal who had obtained the decree under execution. After the death of the decree-holder, Ramautar Lal aforesaid, his sister, Raghubansi Devi, the respondent in this Court, took out execution of the decree on the allegation that the decree-holder aforesaid was merely her benamidar. She alleged further that the consideration for the hand-note, which was the basis of the suit resulting in the decree under execution, had been paid by her to the judgment-debtor. The appellant, on the other hand, put in an application for being substituted as the legal representative of the decree-holder, as admittedly she is his heir. The contest between the admitted heir of the de ceased decree-holder and his sister, who alleges herself to be the real decree- holder, was decided by the executing Court in favour of the respondent. Against the decision of the executing Court, holding that the real decree-holder was the said Raghubansi Devi, the appellant preferred an appeal which was heard by the District Judge, with the result that he agreed with the finding of the executing Court, and dismissed the appeal. The District Judge repelled the contention raised before him that the question of benami could not have been gone into in the execution proceedings. This second appeal on behalf of the widow of the deceased decree-holder has been sought to be supported on the ground that the executing Court could not go behind the decree, as it stands, and hold that the person whose name stands in the record as the decree-holder was not the real decree-holder and that the respondent was the person really entitled to the fruits of the decree.

(3.) Hence, the question to be decided in this appeal is whether the executing Court could have gone into this question, and come to the finding to which it did, namely, that the respondent was the real decree-holder. In my opinion, the answer to this question has already been given by several decisions of this Court, namely, Ram Sewak V/s. Satruhan Deo A.I.R. 1927 Pat. 170, Mohammad Anas v. Bhupendra Prasad A.I.R. 1938 Pat. 457 and Satyendra Narain V/s. Wahiduddin Khan (1940) 27 A.I.R. Pat. 472. The effect of those decisions of this Court is that a decree can be executed, (1) by the person or persons named in the decree as decree-holders, (2) by a person in whose name the decree has been assigned by the decree-holders, or (3) by a person who is the representative of the person named in the decree as decree-holder. The beneficiary, who alleges himself to be the real decree-holder, does not come within any one of the three categories. Hence, he has no locus standi in the executing Court to come up and laim that he is entitled to execute the decree in his own name. I feel myself bound by the decisions of this Court, referred to above, which are all Division Bench rulings. Hence, there is no scope for the discussion as to whether the contrary view held by the Madras High Court in the Full Bench decision in Balasubramaniam v. Kothandramaswami A.I.R. 1942 Mad. 688 or similar decisions of the Calcutta High Court on the same point have rightly laid down the law. Mr. Sarjoo Prasad appearing on behalf of the respondent raised a preliminary objection that no second appeal lay in this case in view of the fact that the contest was between two persons, each claiming to be in the shoes of the original decree-holder, and it was not a question between the judgment-debtor and the decree-holder or one who claims to be in the position of the decree-holder. But the provisions of Sub-section (3) of Section 47, Civil P.C, are wide enough to include a controversy like the present between two persons, each one of them claiming to be in the position of the decree-holder. Hence, in my opinion, there is no substance in the preliminary objection raised on behalf of the respondent.