The question of benami transfer is relevant and within the scope of O. 21, R. 16 C. P. C. The court is bound to enquire into the question of benami transfer and cannot refuse to do so.

( 1 ) THIS appeal has come for hearing before us on a reference by our learned brother Sharfuddin Ahmed J. Sanjeeva Row Naidu, J. , Who heard C. M. A. No. 237 of 1958 made certain observation regarding the scope of o. 21, Rule 16 C. P. C. while remanding that appeal and following them the lower appellate court allowed the C. M. A. C. M. S. A. A. No. 95 of 1961 is directed against that decision. Sharfuddin Ahmed J. , was not prepared to accept the correctness of the view expressed by Sanjeeva Row Naidu, J. as it was contrary to bench decisions of the Madras High Court, namely Ramayya v. Krishnamurthi, ILR 40 Mad 296 : ( AIR 1917 Mad 590 ) and a. Venkataratnam v. Annabattula Nayudu, 28 Ind Cas 906 : (AIR 1915 Mad 799) and hence referred the Appeal to a Bench.

( 2 ) IN order to fully appreciate the contentions raised by the appellant , the antecedent facts may briefly be noticed. One Boda Subbarao, the 2nd respondent before us, obtained a money decree against Gunnam Lakshmipathi (3rd defendant), the appellant before us and Gunnam Bulli Abbayi (5th defendant) 4th respondent before us, in O. s. No. 8 of 1955 for Rs. 5679-13-0 on the foot of a promissory note executed by them. Yedlapalli Veera Venkata Subbarao, the son-in law of the 5th defendant (who is the 1st respondent before us) filed E. A. No. 139/56 on the file of the Subordinate Judge, Rajahmundry for his being recognised as a transferee of the decree from Boda Subbarao under the transfer deed Ex. A. 1 dated 27-1-1956 for Rs. 6,000. 00 that application was opposed only by the 3rd defendant the decree holder and the other defendants having remained ex parte. The contention of the 3rd defendant was that when the decree-holder was about to execute the decree against the 5th defendant, he paid the amount, and obtained a transfer of the decree benami in the name of his son-in-law, had no means to obtain a transfer of the decree. It was, therefore, alleged by the 3rd defendant that the decree having been satisfied by the payment by the 5th defendant, and the petitioner being only his nominee or benamidar, the transfer could not be recognised under O. 21, Rs. R. 16 C. P. C.

( 3 ) ON a consideration of the evidence and the law bearing on the point, the learned Subordinate Judge held that the decree was discharged by the 5th defendant with his money, but took the transfer benami in the name of the petitioner who is no other than his son-in-law and who was living with him, and consequently refused to recognise the transfer.

( 4 ) AGAINST this order, the mater was carried in appeal in A. S. No. 181 of The learned District Judge in the course of his judgment dated 19-1 2-1957 held that though Ex. A. 1 may be true and supported by consideration, the question had still to be decided whether the transfer deed was taken by the petitioner benami for the 5th defendant or not. The learned Judge felt that there were some discrepancies in the oral evidence on behalf of the contesting judgment - debtor (3rd defendant and also that the best evidence which could have been adduced, namely, of the decree-holder (Boda Subbarao) and Sri Sivaramakrishnayya, the counsel for the 5th judgment - debtor, was not placed before the court. The District Judge, therefore felt that the interests of justice required that there should be a remand of the appeal to the executing court, and without expressing his own opinion set aside the order and remanded E. A. No. 139/56 to the Court of the Subordinate Judge for fresh disposal in the light of the observations made by him. The learned Judge gave opportunity to both sides to adduce further evidence in support of the contentions, and observed that the court should insist on the examination of the decree-holder as well as Sri Sivaramakrishnayya and Sri M. Suryanarayana, the advocate for the decree-holder if considered necessary.

( 5 ) AGAINST this judgment , an appeal was preferred to this Court in C. M. A. No. 237 of 1958 which was disposed of by our lea