The main legal point established in the judgment is the interpretation and application of Order 21, Rule 16 of the Code of Civil Procedure, specifically regarding the requirements for execution of a decree by a transferee and the exclusion of benami contentions.

Victor Murray Coutts Trotter, C.J.

1. The rule of law that, where a persons name appears on the face of the record as judgment-creditor and execution of the decree is sought by a transferee of the decree, the decree cannot be executed unless it comes within the words of Order 21, Rule 16 of the Code of Civil Procedure and there has been an assignment in his favour either in writing or by operation of law seems to me to be no rule for holding that a person otherwise a stranger to the Court can come forward and allege that the decree was not his (the transferees) and that he was a benamidar for himself. The learned Judge probably felt himself bound by Manikkam v. Tatayya (1898) ILR 21 M 388 : 8 MLJ 48, but I entertain no doubt whatever that that case was wrongly decided and was an unwarranted departure from, and an extension of the words of, the statute. And I accordingly come to the conclusion that this appeal must be allowed with costs in this Court as well as in the Court below.

2. I may add that the circumstances of the case which was allowed to crawl on to the very last day of a long period of limitation are extremely suspicious. But all that we are concerned with is the simple point of law. I ought to add, I think, that it follows from this expression of opinion that we must also dissent from the decision reported in Abdul Kareem v. Chukhun (1879) 5 Cal LR 253.

Srinivasa Aiyangar, J.

3. I agree that the appeal should be allowed with costs. The petitioner applied in the Original Side not only for execution of the decree under Order 21, Rule 16, but also by an independent Judges summons for bringing his name on the record as a transferee decree-holder. There is no provision in the Procedure Code for any such application. I am not at all sure whether what is called "bringing on the record the transferee decree-holder" is not really a survival from times previous to the Procedure Code. The scheme of the Code is that the transferee by assignment in writing or by operation of law merely files his application for execution of the decree setting out either in it or in an affidavit be has filed in support thereof that he is the transferee either by operation of law or by any particular instrument in writing and thereupon the Court orders the application for execution or rejects it. Therefore we must treat the present application really as an application under Order 21, Rule 16. The contention of the respondent is that he was entitled to such execution because he was the real owner under the transfer executed to R. M. M. Subramania Chetti who was his agent and who had obtained an instrument in writing transferring the decree to his name, If the case of the petitioner were that the transfer was obtained by the agent in his name but in the Vilasam of the firm of which he was the agent then there could have been no objection whatever to execution being granted on the application of the petitioner because the appearance of the Vilasam in the name of the transferee would really be to the firm or person bearing the Vilasam even apart from its serving to secure the benefit of the transfer to the firm represented by the Vilasam. But in this case the transfer was to the agent personally. The question therefore is whether if there has been a transfer to a particular person under an instrument in writing, any other person is entitled to come to the Court and say that that transferee was a mere benamidar and that he, the applicant, is the real owner of the benefit secured by the transfer. It seems to me that Order 21, Rule 16 is perfectly clear on the point. It speaks of the decree being transferred by assignment in writing or by operation of law and provides that in such cases the transferee may apply for execution. When the statute speaks of an assignment in writing and the transferee, the proper construction of the words would necessitate our holding that the transferee referred to is the transferee named as such in the assignment in