BHUNESHWAR PRASAD NARAIN SINGH Vs. MOHAN BIKRAM SAH

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an order of the Additional Subordinate Judge, Motihari, dismissing his objection to the execution of a money decree.

(2.) The money decree in question was originally passed against the appellant in Suit No.100 of 1931 at Benares at the instance of one Mathura Das. On 21-8- 1932, the decree was transferred to the Subordinate Judge at Motihari for execution. On 28-5-1933 the first Execution case No. 63 of 1932 was initiated and was dismissed on 22-12-1934, on part satisfaction On 22-8-1935, a second Execution case No. 122 of 1935 was instituted and during the pendency of this execution case on 13-1-1937, the decree was assigned for consideration by a registered sale deed to Maiya Dalip Rajeshwari Devi (hereinafter referred to as Maiya Dalip) acting, as will appear hereafter, as the benamidar of her sister Rani chhatta Kumari Devi (hereinafter referred to as the Rani) and in January 1937, Maiya Dalip the benamidar was brought on to the record of Execution case No. 122 of 1935. On 80-1-1937, the real assignee of the decree, the Rani, died. On 5-4- 1937, the second Execution case No. 122 of 1935 was dismissed. On 18-5-1937, a third Execution case No. 75 of 1937 was instituted by Maiya Dalip. Daring the pendency of this third Execution case, Ratnraja, the present respondent, put in an application apposing the execution petition on ground that Maiya Dalip was a benamidar of the Rani. This application was dismissed and Ramraja was referred to the Civil Court.

(3.) In 1937 Ramraja instituted title Suit No. 31 of 1937 in the Court of the Subordinate Judge, Motihari, claiming a declaration that Maiya Dalip was only a benamidar with respect to the deed of assignment of the decree here in question, that the real purchaser was Rani Chhatra Kumari Dei who paid the consideration money, that after the latter's death the absolute interest under the deed of assignment passed to Ramraja and that Maiya Dalip had no right to execute the decree and should be restrained there from by permanent injunction. During the pendency of this title suit, Ramraja obtained an order therein staying the proceedings in the third Execution case No. 75 of 1937. On 22-4-1939, Ramraja's suit was decreed. In consequence, on 31-5-1939, the application in Execution Case No. 75 of 1937 was dismissed. On 2l April, 1942, Ramraja instituted the fourth and present Execution Case No. 42 of 1942. This application was opposed by the judgment-debtor on the ground that the third Execution case No. 75 of 1937, filed by Maiya Dalip could not enure to the benefit of Ramraja and that since more than three years had elapsed from the date of the final order in the previous Execution case No. 122 of 1935, the decree had become time-barred. Before the learned Additional Subordinate Judge the appellant relied upon the decisions in Saminatha Asari V/s. Gopalakrishna Aiyengar A.I.R. 1917 Mad. 2 and Achutanand Giri V/s. Saran Singh A.I.R. 1938 Pat. 531 as supporting his contention that Execution Case No. 75 of 1987 did not enure to the benefit of Ramraja.