Sankaran Nair, J.:— I have had the advantage of reading the judgment which will be delivered by my learned colleague and for the reasons given by him in that judgment I agree that Appeal No. 227 of 1912 should be dismissed with costs.
2. Appeal No. 250 of 1912 fails also on another ground. The original suit was brought by the plaintiff to set aside certain orders in execution proceedings holding that the transfer by the decree-holder, defendant 4, of his decree in favour of defendant 1, was not Load for the benefit of the plaintiffs and for a declaration that such transfer was made for consideration paid by the plaintiffs and for their benefit. I am of opinion that such a suit is not maintainable. That question must be decided by the Court; executing the decree. A separate suit to determine the question for the purpose of execution will not lie: see Section 47, Clause (3) of the CPC. It is not brought here for any other purpose. The appeal is dismissed with costs.
Spencer, J.:— Appeal No. 250 of 1912.—Defendant 4 obtained two decrees against defendants 1 and 2, and defendant 3's father and he attached crops raised by defendant 1 and his son. On payment of Rs. 4,000 both decrees were assigned by defendant 4 to defendant 1's brothers and the attachment was released.
3. Afterwards the assignees, who are here, appellant 1, and the father of appellant 2, applied to the District Munsif of Amalapuram to recognize the assignment and to permit them to execute the decree in Original Suit No. 356 of 1901 under which Rs. 2,198 were due at the date of assignment.
4. The District Munsif decided that the two so called assignees were name-lenders for defendant 1 and refused to let them execute the decree. They appealed to the District Judge, but their appeal was dismissed.
5. They then brought this suit for a declaration that the transfer was not nominal but for their own benefit, and that they themselves paid the consideration for it. The same District Judge who had previously decided the appeal tried the suit and dismissed it. They how appeal.
6. In my opinion the plaintiffs are clearly bound by the result of the appeal, Appeal Suit No. 45 of 1909 in the District Court. In those proceedings the same question was substantially in issue between the same parties.
7. Though the application purported to be made under Ss. 232 and 269 of the old Code, the order was one under S. 244, as may be seen from the fact that an appeal was taken against it, whereas there is no appeal provided against directions made by the Court under the two first-mentioned sections. It is unnecessary to cite authorities for this view, but I may refer to Badri Narain v. Jai Kishen Das(1) and Ganga Das Seal v. Yakub Ali Dubashi(2), where there is a full discussion of the question when the decision of a Court that a transferee is entitled to obtain execution of the decree, constitutes a determination of a matter falling under S. 244.
8. The cases in which it has been held that a suit will lie for a declaration that the plaintiff is the person entitled to execute the decree are cases such as Raman v. Muppil Nayar(3) and Sheoraj Singh v. Aminuddin Khan(4), where it was held that the order was passed under S. 232 and was not appealable.
9. Here there is a final decree which binds the parties and the plaintiffs cannot be allowed to agitate the matter again by suit.
10. The appeal is dismissed with costs.
Appeal against Order No. 227 of 1912.
11. The appellants obtained a transfer of the decree in Original Suit No. 14 of 1906 on the file of the District Court of Godavary. Rs. 3,037 were due under this decree when the decree holder, who is respondent 4 in this appeal, accepted Rs. 4,000 in satisfaction of his claim under this decree and under the decree in Original Suit No. 356 of 1901 on the file of the Court of the District Munsif of Amalapur, with which Appeal No. 250 of 1912 is connected, and assigned his rights under both decrees to appellant 1 and the father of appellant 2, who were related as brothers to one of the judgment-debtors who is respondent 1 in this appeal.
12. The District Judge held on the evidence, which was the same as that let in Appeal Suit No. 250 of 1912, that the assignment, while ostensibly in the name of the assignees, was in reality made for the benefit of respondent 1.
13. When the same assignees attempted to execute the other decree in the District Munsif's Court, the same conclusion as to the benami nature of the assignment was arrived at both by the District Munsif in the execution proceedings and by the District Judge in appeal.
14. On this finding of fact the District Judge was bound by Prov. 2, O. 21, R. 16, to refuse to allow the decree in Original Suit No. 14 of 1906 to be executed. Respondent 1 was him self one of the judgment-debtors and he applied to execute the decree only against the heirs of the other judgment-debtor.
15. It has been argued that the District Judge's finding on the evidence was wrong.
16. Seeing that the two Courts have already found on these facts, that the transfer to the appellants was a nominal one, seeing also that it was respondent 1 who applied to respondent 4's tanedar to have the decrees transferred to appellant 1 and appellant 2's father (see Exs. 2 and 4) and it was he who deposited the Rupees 4,000 (see Exs. 5 and 6) and took the deeds of transfer [see Ex. 3(b)], and seeing that the evidence as to the source from which the Rs. 4,000 were raised was not very complete and satisfactory, we are not prepared to say that the District Judge's finding on this point was wrong. We must therefore dismiss this appeal with costs.
S.N/R.K
17. Appeals dismissed.