Bennett, J.:— 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.

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 the 21st of August, 1932, the decree was transferred to the Subordinate Judge at Motihari for execution. On the 28th of May, 1933, the first Execution Case no. 63 of 1932 was initiated and was dismissed on the 22nd of December, 1934, on part satisfaction. On the 22nd of May, 1935, a second Execution Case no. 122 of 1935 was instituted and during the pendency of this execution case on the 13th of January, 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 Chhatra 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 the 30th of January, 1937, the real assignee of the decree, the Rani, died. On the 5th of April, 1937, the second Execution Case no. 122 of 1935 was dismissed. On the 18th of May, 1937, a third Execution Case no. 75 of 1937 was instituted by Maiya Dalip. During the pendency of this third execution case Ramraja, the present respondent, put in an application opposing 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. 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 Devi 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 therefrom 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 the 22nd of April, 1939, Ramraja's suit was decreed. In consequence on the 31st of May, 1939, the application, in Execution Case no. 75 of 1937 was dismissed. On the 21st of 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. Gopalakrishna Aiyengar and Achutanand Giri v. Saran Singh as supporting his contention, that Execution Case no. 75 of 1937 did not enure to the benefit of Ramraja. In both these cases a similar question arose as to the effect, if any upon limitation of a previous application in execution and in both the cases it was held that an application for execution by one person, whose alleged interest in the decree to be executed was hostile to that of the person there seeking to execute, could not enure to the benefit of the latter. The respondent before the learned Additional Subordinate Judge relied upon two decisions of this Court in Sm. Lalmani Kuer v. Sm. Raghubansi Devi and Mohamad Anas v. Bhuwendra Pd. Sukul. In the first of these cases, which was decided by my learned brother sitting with Sinha, J., it was held that the executing Court must take the decree as it stands, that the parties should not be allowed to go behind the decree and allege and prove that some persons other than the parties appearing on the face of the record are the real beneficiaries and that such a question can conveniently be dealt with in a regularly constituted suit. It was said consequently that a beneficiary who alleges himself to be the real decree-holder has no locus standi in the executing Court to come up and claim that be is entitled to execute the decree in his own name. It is to be remarked that in that case it was the identity of the real decree-holder which was in issue and not, as in the case before us, the identity of the real transferee from the decree-holder. In the second case, to which I shall revert in more detail hereafter, it was held that an application made by the real assignee of a decree, which was struck off upon the benamidar claiming that it was he who was the real assignee before the date of the decree obtained by the real assignee declaring that he was the real transferee did not enure to his benefit. The learned Additional Subordinate Judge eoncluded that before the decision in Title Suit no. 31 of 1937 Ramraja was not competent to file an application for execution of the decree as heir of the real beneficiary and that, even if so filed, it would have been incompetent in law and would not have saved limitation and he held that being so and since the position of Maiya Dalip on the date when she instituted Execution Case no. 75 of 1937 was that of a benamidar that application will enure to the benefit of Ramraja. It is against this decision that this appeal has been brought.

In addition to the point taken before the learned Additional Subordinate Judge, Mr. B.N Mitter, who appeared for the appellant, urged that Execution Case no. 75 of 1937 was in any event a void proceeding because there was nothing to show that Maiya Dalip, as was incumbent upon her, had made any application under Order 21, rule 16, C.P.C which would entitle her to execute the decree transferee thereof, and that, in any event, Ramraja's application in Execution Case no. 42 of 1942 could not be granted, firstly, because it did not appear on the face of the record that he had ever applied under Order 21, rule 16, C.P.C, to be allowed to execute the decree and; secondly, because the declaration obtained by Ramraja was not sufficient in itself to constitute him a transferee of the decree or, therefore entitled in any way to execute the same.

Before considering these various contentions it will, I think, be convenient to clear our minds as to the position of a benamidar in general. In this connection I would refer first, to the judgment of a Division Bench of the Madras High Court, I consisting of Devadoss and Pakenham Walsh, JJ., in Yelamanchili Pitchayya v. Yelamanchili Rattalmma. In the course of their judgment in that case their Lordships made the following observations upon the positions, respectively, of the real owner and the benamidar in relation to a banami transaction:—

“When a person acquires an interest in property with his funds in the name of another for his own benefit the latter is called a benamidar. A benamidar is not a trustee in the strict sense of the term. He has the Ostensible title to the property standing in his name but the property does not vest in him but is vested in the real owner. He is only a name lender or an alias for the real owner. The cardinal distinction between a trustee as known to English Law and a benamidar lies in the fact that a trustee is the legal owner of the property standing in his name and the cestui que trust is only a beneficial owner whereas, in the case of a benami transaction, the real owner has got the legal title though the property is in the name of the benamidar. It is well settled that the real owner could enforce his remedy in respect of property standing in the: name of a benamidar without reference to the latter. If a mortgage stands in the name of a benamidar, the person for whom the mortgage was obtained could sue on the mortgage, and the same rule applies to other transactions except those forbidden by law. The benamidar has some of the liabilities of a trustee but not all his rights. When the benamidar is in possession of the property standing in the name, he is in a sense the trustee for the real owner. It is well settled now that a benamidar can sue in his own name. He can give a discharge to an obligor, who, not knowing the real nature of the transaction, bona fide pays him the amount due from him.”

And, again, later—

“It is the interest of the real owner to protect his rights when he thinks that the action of the benamidar might prejudice him. As the benamidar is only an alias for the real owner, the real owner could always step in and say that he is the person who is entitled to the property or contract standing in the name of the benamidar.”

I would next quote the following extract from the judgment of Lord Atkinson when delivering the judgment of the Judicial Committee in Petherpermal Chetty v. Muniandi Servai—

“In Mayne's Hindu Law (7th ed. p. 595, para. 446) the result of the authorities on the subject of benami transactions is correctly stated thus:

“446. ……… Where a transaction is once made out to be a mere benami it is evident that the benamidar absolutely disappears from the title. His name is simply an alias for that of the person beneficially interested.”

I would next refer to the judgment of the Judicial Committee in Gur Narayan v. Sheolal Singh. In the course of their judgment in that case their Lordships of the Privy Council have stated—

“So long, therefore, as a benami transaction does not contravene the provisions of the law the Courts are bound to give it effect. As already observed the benamidar has not beneficial interest in the property or business that stands in his name; he represents, in fact, the real owners and so far as their relative legal position is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him. In case of a contest between an alleged benamidar and an alleged real owner, other considerations arise with which their Lordships are not concerned in the present case.”

The above observation that it was open to the person beneficially entitled to apply to be joined in the action would appear to indicate that a suit would be at the instance of the person beneficially entitled, though, of course, it would, in such be open to the defendant, if the alleged benamidar had not already been made a party to the suit, to apply to make the benamidar a party thereto.

It will be convenient to deal first with the point that the third Execution Case no. 75 of 1937 instituted by Maiya Dalip was void in that there is nothing on the face of the record to show that she had made any application under Order 21, rule 16 C.P.C to the executing Court at Benares for leave to execute the decree as the transferee thereof. The contention ignores the amendment to Order 21, rule 16 which came into force on the 1st March, 1936, that is to say, more than ten, months prior to the assignment to Maiya Dalip. Under the amendment, where the decree has been transferred for execution by some Court other than the Court which passed the decree, the application under the rule is properly made to the transferee Court.

I turn, therefore, to the point taken in the Court below that Execution Case no. 75 of 1937 cannot enure to the benefit of Ramraja because his own objections thereto and the subsequent Title Suit no. 31 of 1937 brought by him against Maiya Dalip show clearly that in filing Execution Case no. 75 of 1937 Maiya Dalip was acting in her own interest and hostile to the interests of Ramraja. No doubt, where two persons claim to execute a decree by virtue of rights which are entirely independent of each other, as, for instance where each claims to be the heir of the deceased decree-holder, an application for execution by one of them in his own right will not and cannot operate as an assertion of the independent right of the other and so will not: enure to the benefit of that other, but where the sole locus standi of the one to claim to execute the decree derives solely from the lending of his name to the other, their respective rights to enforce the decree are not independent of each other. It follows from the declaration obtained by Ramraja in Title Suit I no. 31 of 1937 that the entry of the name of Maiya Dalip in the transfer instrument was never more than a mere alias for Rani Chhatra Kumari. In applying to be brought upon the record of Execution Case no. 122 of 1935 and in filing Execution Case no. 75 of 1937, Maiya Dalip necessarily relied solely upon the entry of her name in the deed of transfer, but that entry being in law a mere alias for Rani Chhatra Kumari and, after her death, her heir Ramraja, Maiya Dalip must clearly be held in law to have been asserting the right of Rani Chhatra Kumari and later of her heir Ramraja. A person in the position of a benamidar cannot in law act in relation to the benami property in a manner hostile to the real owner and if he attempts to do so the law will restrain him from so doing and the real owner is entitled to the benefit of a wrong act done by the benamidar in relation to the benami property. The underlying principle is that stated by Lord Ellenborough in Taylor v. Plumer. In that case a draft for money was entrusted to a broker to buy Exchequer bills for his principal and the broker received the money and misapplied it by purchasing American stock and bullion, intending to abscond with and go to America, and did accordingly abscond, but was taken before he quitted England, and thereupon surrendered to the principal the securities for the American stock and bullion, who sold the whole and received the proceeds. It was held that the principal was entitled to withhold the proceeds from the assignee of the broker, who became bankrupt on the day on which he so received and misapplied the money draft. The relevant portion of Lord Ellenborough's judgment, reads as follows:—

“…….upon a view of the authorities, and consideration of the arguments, it should seem that if the property in its original state and form was covered with a trust in favour of the principal, no change of that state and form can divest it of such trust, or give the factor, or those who represent him in right, any other more valid claim in respect to it, than they respectively had before such change. An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him. The argument which has been advanced in favour of the plaintiffs, that the property of the principal continues only so long as the authority of the principal is pursued in respect to the order and disposition of it, and that it ceases when the property is tortiously converted into another form for the use of the factor himself, is mischievous in principle, and supported by no authorities of law.”

Any proceeds realised by Maiya Dalip as a result of Execution Case no. 75 of 1937, would clearly have belonged to Ramraja; that being so it is idle to pretend that those proceeding do not enure to his benefit.

There remain the last point taken by the appellants, namely, that the declaration in Title Suit no. 31 of 1937 did not itself suffice to constitute Ramraja a transferee of the decree within the meaning of Order 21, rule 16 and that therefore the present Execution Case no. 42 of 1942 was incompetent. In this respect, great reliance was placed upon the decision of this Court in Shaikh Mohammad Anas v. Bhupendra Prasad Shukul. In that case A obtained a decree for possession and mesne profits in 1920 and thereafter he assigned 7-annas interest in the same in favour of N, who took the assignment in the name of M. The amount of mesne profits was ascertained and a final decree was passed in 1923. In 1925, A and N applied for execution of the decree, but the execution was struck off as M claimed that he was the real assignee and the parties were referred to get the matter determined by a suit. N got the declaration that he was the real transferee, and thereafter in 1935, an application was filed for execution and the judgment-debtor asserted that the application for execution of the year, 1925, was not in accordance with law and therefore the present application for execution of 1935 was barred by limitation. The headnote to that case goes on to state—

“Held, that the transferee under a deed of assignment referred to in rule 16 of Order XXI, was the person named in the deed and not the real transferee.” and

“Held, also, that in view of the express provision of the law, Order XXI, rule 16, the mere fact that a declaration was made that N was the real transferee did not entitle him to levy execution.”

In my opinion, the latter part of the headnote is inaccurate and misleading. What was held in that case was that the earlier application for execution in 1925 was invalid in that it was not made by a transferee of the decree, because the transferee under a deed of assignment is the person named therein as transferee and that when the executing Court, upon the objection by the benamidar, referred N and M to the Civil Court in order that their respective rights and obligations might be determined in a properly constituted suit, it had not decided by inference that if N succeeded in obtaining a declaration of his rights then he would have been entitled to execute the decree at the time of the earlier application in 1925. That this is the true scope of the decision in that case is clear from the following extract from the judgment of Wort, J.

“It will be seen that the only question for decision—whether the last application of the 5th of March, 1935, is barred by limitation—depends upon the validity, of the application of the 14th of July, 1925, being the first application for execution. If for any reason it is held, as the Judge in the Court below has held, that the first application of the 14th July, 1925, was not in accordance with law within the meaning of Article 182 of the Limitation Act, then it is clear that all the subsequent applications must necessarily go, on one ground alone that they would be barred by limitation.

Now, the point can be stated in this way—

…………………Now it seems to me quite clear on the plain reading of the rule itself that the view that should be taken appears on the face of the rule itself if the interest of any decree-holder in a decree ‘was transferred by an assignment in writing’, etc., the transferee under a deed of assignment is the person who is named as a transferee. There can be no doubt about that—it is trite. But Dr. Mitter says that we should have regard to the universal practice in India of carrying out transactions in the benami names and he refers us to the decision of the Privy Council in the case of Gur Narayan v. Sheo Lal Singh. There Mr. Ameer Ali, in delivering the judgment of the Board, makes reference to this practice in these words:

‘The system of acquiring and holding property and even of carrying on business in names other than those of the real owners, usually called the benami system, is and has been a common practice in the country. There is nothing inherently wrong in it and it accords, within its legitimate scope, with the ideas and habits of the people.’

Then his Lordship refers to the opinion of their Lordships of the Judicial Committee as stated by Sir George Farwell in Bilas Kunwar v. Dasraj Ranjit Singh where Sir George Farwell states—

‘It is quite unobjectionable and has a curious resemblance to the doctrine of our English law that the trust of the legal estate results—to the man who pays the purchase-money.’

Then Mr. Ameer Ali proceed to say:

‘As already observed, the benamidar has no beneficial interest in the property or business that stands in his name, he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him.’

I must say that I fail to understand the argument of Dr. Mitter on this point. It is of course obvious to anyone even with the least experience in this country that this practice of carrying out what is described as benami transaction exists, but it cannot alter the law. If every transaction was carried out in the benami name of another and that custom was universal and there was no departure from it in one single instance, then such custom might be proved and it might perhaps be said that you have established a, custom, the effect of which would be to establish the proposition that where the word ‘transferee’ is used in a document in India it means ‘the real transferee and not the benamidar’. It is only in that extreme case that the argument can avail the appellants in my judgment. The transferee under the deed of assignment we are dealing with was Mohammad Akhtar and no other; what rights a real transferee, the beneficiary under the deed, may have for the purposes of this case are neither here nor there. Indeed so far as Order XXI, rule 16, is concerned, it seems to me that the alteration of law which appeared first of all in the Code of 1877, that is to say the requirement that an assignment of the decree should be in writing, was a provision which the Legislature enacted for the very purpose of preventing difficulties of the kind, we have to deal with here. It was unsuitable, as their Lordships of the Privy Council point out in one of their decisions in this matter, that questions of this kind should be determined in execution; and that leads me to the other branch of the argument in connection with this part of the case addressed to us by Dr. Mitter.

Whilst these various applications were being made in execution as we have seen the action for a declaration that Nazir Ahmad was the beneficiary under the deed was pending in the Court and was ultimately decided. It was contended that this Court gave a declaration in favour of Nazir Ahmad and that, as his right dated back to the application of the 14th of July, 1925, therefore it was shown that he was the person who was entitled to take out the application for execution. That argument begs the question. All that the High Court decided was that Nazir Ahmad was the real owner of the 7-annas interest of the decree if I may put it in that language. The question whether he was entitled to sue out execution was not decided by any of the Courts in that case and necessarily could not be decided. But it is further contended in this regard that the Subordinate Judge in referring the parties to a properly constituted suit by inference decided that if the plaintiff succeeded in getting this declared then he was entitled to apply for execution of the decree. That in my judgment is an argument which cannot be supported. The learned Judge did not commit himself in that way and indeed we know that application was eventually struck off. The question was never decided and further more there can be no inference drawn from what actually took place because it may very well be that the learned Judge was of the Opinion that the beneficiary Nazir Ahmad might have joined with the benamidar in making the application and indeed there is no knowing what the ultimate decision of the Subordinate Judge in the execution proceedings would have been had the question come to be determined by him.

Now the other branch of the case relates to Order XXI, rule 15, of the Code of Civil Procedure.”

It is perfectly clear, in my opinion, that their Lordships, in that case never purported to consider the question whether, following the declaration obtained by N he was entitled to apply for execution in the very execution case before him. Their decision was restricted to the validity or otherwise of the earlier application for execution in 1925 which preceded the declaration obtained by N in the Civil Courts. Indeed, if their Lordships had been of the opinion that the very execution case itself before them was invalid on that ground, it is difficult on the face of the judgments to understand why they should have troubled to consider the earlier execution at all. In my opinion, therefore, the case of (I.L.R 17, Patna, 223) has no application to the question now under consideration in this case and is not therefore decisive of the point before us. I feel bound to state, however, that if I had thought that we were bound by that decision, I should have felt compelled to refer the appeal to the Hon'ble Chief Justice in order, if he were so pleased, that it might be decided by a larger Bench, because, with the greatest respect, I find it impossible to reconcile the ratio decidendi of their Lordships in that case with the general proposition of law stated by their Lordships of the Privy Council as above cited as to the legal relationship between a benamidar and the real owner. If the benamidar named in an instrument of transfer is a mere alias for the real owner, then the transferee is and always was the real owner, the word ‘transferee’ in Order 21, rule 16 must be understood to mean the legal transferee and, in the case of a benami transfer, that is the real owner. No doubt, when the real owner comes forward to assert his status as transferee, the position of the transferor, of then judgment-debtor and of the alleged benamidar must be protected. So far as the transferor and the judgment-debtor are concerned, this protection is provided by the proviso to Order 21, rule 16. So far as the position of the alleged benamidar is concerned if he denies the benami nature of the transaction, I should have thought myself that his and the alleged real owner's respective rights could and should properly be decided by the executing Court since they are each of them claiming in effect to be parties to the decree, but the decisions of this Court are to the effect that their rights should be worked out in a separate suit instituted for the purpose in the appropriate Civil Court. If, in such a case, the executing Court refers the real owner to the Civil Court, it has a duty to protect his position in the execution and not to make itself a party to the situation where, by reason of the ordinary duration of civil proceedings, his right to execute the decree will become time-barred. The proper order to be made by the executing Court upon an application by a person alleging himself to be the real owner of a decree under a benami transfer thereof, if the alleged benamidar denies the benami nature of the transfer, is to stay further proceedings upon the application pending the decision of the Civil Court subject to the institution of a suit by the alleged real owner for a declaration of his status as such within a reasonable time.

It follows from the views which I have already expressed and from the general propositions of law above cited as to the respective positions of the benamidar and the real owner in relation to the property the subject of the benami transaction that, in my opinion, upon the mere declaration by a competent Court of his status as the real owner, the latter is a transferee within the meaning of Order 21, rule 16 and that it is not necessary for him to obtain an actual transfer of the decree to himself from the benamidar or from the Court. The declaration of his status as such has the effect of declaring that the benamidar's name in the instrument of transfer is a mere alias for that of the real owner and, therefore, that the real owner is in fact and in law the actual transferee thereunder.

I would, therefore, dismiss the appeal with costs.

Beevor, J.:— I agree, but would like to add some remarks of my own on one point raised in this appeal.

As regards the decision in Shaikh Mohammad Anas v. Bhupendra Prasad Shukul, I agree with my learned brother in thinking that case may need reconsideration by a larger Bench when occasion arises, but it is unnecessary to ask for any such reference in connection with the present appeal. It is, I think, important to notice that the decree under execution in that case was for execution of a final decree for mesne profits passed on the 6th of March, 1923, in favour of Mohammad Anas and Mohammad Akhtar. The latter was the farzidar of one Mohammad Nazir Ahmad who had taken a transfer of a 7 anna interest in the preliminary decree in the name of the farzidar from Mohammad Anas who was the sole decree-holder of the preliminary decree. On the 14th of July, 1925, an application for execution was made by Mohammad Anas and Nazir Ahmad. It was held that application was not a valid application for the purpose of saving subsequent applications from the bar of limitation. It will be noticed that there is no allegation that there was any assignment between the date of the final decree and the date of the application for execution filed on the 14th July, 1925. It seems to me, therefore, that what was really decided in that case is that where there has been no assignment after the date of the decree no person can file an application for execution alleging that the person in whose name the decree stands is a benamidar, and thus the decision has really no application to the cases of transfer of decrees which are dealt with under Order 21 rule 16, Civil Procedure Code.

K.D

Appeal dismissed.