M. N. Shukla, J. - (1.) THIS appeal arises out of proceedings under Order 21, Rule 16, Civil Procedure Code in an execution case.
(2.) THE brief facts are that the Banaras Electric Light and Power Supply Co., Ltd., Banaras obtained a decree against the Parbati Hemp Bailing Press owned by a firm styled as Radhakrishna Shivadutta Rai in which Ram Kumar and Madan Gopal Gupta were the partners. The Electric Company put its decree in execution. The decree was, however, sold during the pendency of the execution on 28-4-1967 to Om Prakash appellant. He applied under Order 21, Rule 16, Civil Procedure Code for substitution of his name in place of the original decree-holder. The judgment-debtors opposed the same and filed objections stating, inter alia, that Om Prakash was a man of no substance, that he did not have the capacity to purchase the decree on payment of Rs. 9,500.00 to the original decree-holders, that the decree was actually purchased by Mahabir Prasad who was the grandson of Ram Kumar (one of the judgment- debtors). It may be noted that during the pendency of the execution Ram Kumar died and his grandson Mahabir Prasad was substituted as his legal representative. It is also mentioned in the objections that Mahabir Prasad was on inimical terms with Madan Gopal Gupta (judgment-debtor) and so the former had really purchased the decree in order to harass Madan Gopal Gupta and others. It was further urged that the purchase by Mahabir Prasad as one of the judgment-debtors amounted to full satisfaction of the decree within the meaning of the second proviso to Rule 16, Order 21, C. P. C. and it could not be executed against the other judgment-debtors. The parties adduced evidence and the Court below came to the conclusion that Om Prakash was not the real purchaser of the decree, the real purchaser was Mahabir Prasad who was a partner of the judgment-debtor firm. In that view of the matter it was held that the decree was not executable against the other partners of the firm and the application made by the appellant Om Prakash was not maintainable. The application was accordingly rejected.
(3.) SRI Rajeshwari Prasad, learned Counsel for the appellant, has placed reliance on the provisions of Rule 16, Order 21, Civil Procedure Code and contended that the appellant being an assignee of the decree- holder was entitled to the execution of the decree. He also assailed the finding of the court below that the appellant was a benamidar of Mehabir Prasad who was the real purchaser of the decree. The learned Counsel for the respondents has, on the other hand, relied on the second proviso to Rule 16, Order 21, Civil Procedure Code and submitted that the application of Om Prakash was not competent and the decree was not executable against the judgment-debtors other than Mahabir Prasad. He also endeavoured to support the finding of the court below that Om Prakash was only an ostensible purchaser and that Mahabir Prasad was the real purchaser of the decree. 4-A. The learned Counsel for the appellant has canvassed a pure question of law relating to the interpretation of Order 21, Rule 16, Civil Procedure Code and if his contention is well founded, it would not be necessary to go into the question as to whether the appellant was the benamidar of Mahabir Prasad. Even if we proceed on the assumption that Om Prakash was the benamidar of Mahabir Prasad, the crucial question which must be determined is as to whether Mahabir Prasad can be regarded as a judgment-debtor so as to attract the application of the second proviso to Rule 16, Order 21, Civil Procedure Code. 5. The provisions of Order 21, Rule 16, Civil Procedure Code run as under : "16. Application for execution by transferee of decree. - Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder. Provided that, where the decree or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution; Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the other." ;