Judgement

Appeal (No. 39 of 1923) from a decree (May 20, 1921) of the High Court varying a decree of the officiating Subordinate Judge of Midnapur.

The suit was brought in 1917 by the first four respondents (the remaining respondents being defendants joined pro forma) against the two appellants. The plaintiffs alleged by their plaint that the second appellant, who had been their pleader in a previous suit, had bought the unexecuted portion of the decree made in the suit, the purchase being made in the name of the pleaders wife, the first appellant. They prayed for a declaration that the purchase had been made benami and for consequent

Law. Rep. 51 Ind. App. 24 ( 1923- 1924)

Nagendrabala Dasi V. Dinanath Mahish 142

relief. During the pendency of the suit the first appellant executed the decree, and, having obtained the leave of the Court to bid, purchased at the auction the property taken in execution.

The Subordinate Judge found that the decree had been purchased by the pleader benami, and ordered a re-transfer of it upon the terms stated in the judgment of the Judicial Committee.

Upon appeal to the High Court the decision of the trial judge was affirmed by Mookerjee and Buckland JJ., who however varied the decree by ordering further that the re-transfer should include the property purchased at the auction sale.

1923. Nov. 1, 2, 6. De Gruyther K.C. and Dube for the appellants.

Abdul Majid for the respondents Nos. 1 to 4.

Nov. 29. The judgment of their Lordships was delivered by

LORD DUNEDIN. In 1901 certain persons, among whom were the respondents, borrowed a sum of Rs. 19,999 from the Raja Narendra Lal Khan Bahadur and executed a mortgage in favour of his wife, Rani Marinalini Debi. In 1906 the Rani put the mortgage in suit. Defences of various kinds were entered. The male appellant in this case acted as pleader for all the defendants, and on their behalf effected a compromise of the suit. This compromise was dated February 19, 1907. Payments under the compromise not having been duly made, the Rani proceeded to execute afresh and some properties were sold, but eventually, and before the decree was fully executed, the Rani, on February 7, 1915, sold the unexecuted decree for Rs. 11,500 to the female appellant, who is the wife of the male appellant. Thereafter the female appellant proceeded to execute the decree. Objections were made by several of the judgment-debtors. It is not necessary for the purposes of the present appeal to follow minutely the progress of the execution proceedings. It is sufficient to state that some of the properties were brought to sale and that the female appellant, on February 18, 1918, obtained leave to bid, and that she herself purchased certain properties at the sale.

The present suit was raised by the judgment-debtors to have it declared that the purchase of the unexecuted decree was really a purchase benami of the male appellant; that it was therefore bad as a purchase by a pleader of the property in suit with concealment of the fact that he was the real purchaser and praying for appropriate relief.

The Subordinate Judge found that the purchase was benami, and ordered a reconveyance of the decree to the plaintiffs on payment of Rs. 13,750, being the amount paid on the transfer of the decree plus certain sums which had been paid to save the property from being taken for other executions. The High Court so far affirmed the judgment, but added that the defendants must also convey the properties purchased by the female defendant at the sale in execution of the decree.

As both Courts had found that the purchase of the decree by the wife was truly benami for the husband, who was at that time the pleader, the appellants were obliged to accept this fact. Their argument, however, came to this They admitted that the result is that they are bound to surrender the unexecuted decree to the respondents at the price they paid for it; but they say that the decree was a good decree in their hands and that sales act