JUDGMENT

Chamier and Piggott, JJ. - These are appeals against an order of the Subordinate Judge of Mainpuri, rejecting an application presented by the appellants for an order absolute u/s 89 of the Transfer of Property Act. A decree nisi was passed in favour of two persons, Sheo Prasad and Tulsi Ram, on December, 24th, 1900, and was confirmed on appeal by this Court with a slight modification on the 19th January, 1914. That decree was passed against Musammat Indomati and others. The business of the decree-holders failed and their rights under the decree were put up for sale in execution of a decree held against them by Moti Lal and Fateh Lai. At the execution sale the share of the decree-holder Sheo Prasad was sold to one Ram Bharose and the appellants assert that on the 27th September, 1905, the rights of Ram Bharose were transferred to Bisheshar Nath and that on the 3rd May, 1906, Bisheshar Nath transferred his rights to Kamta Prasad the appellant in appeal No. 331. At the same execution sale the share of the decree-holder Tulsi Ram was sold to Ajudhia Prasad. Badlu Ram the appellant in appeal No. 332 says that on the 31st March, 1905, Ajudhia Prasad transferred to him all his rights under the decree.

2. The appellants therefore applied to the court below for the passing of an order absolute in the capacity of transferees of the decree. The application was resisted by the judgement-debtors on the ground that the applicants were benamidars and, therefore, could not maintain the application. The court below on the question of fact has held that the appellants are no more than benamidars for the original decree-holders, Sheo Prasad and Tulshi Ram, who, it is supposed, have re-purchased their rights under the decree in the names of other persons in order to protect those rights from attachment and sale at the instance of their other creditors. The court below has in accordance with the decisions of the Calcutta High Court held that the appellants are benamidars are not entitled to apply for an order absolute.

3. In appeal it is contended that the decision of the court below on the question of fact is erroneous. We have been taken through the evidence regarding the purchases effected by the appellants and we think it sufficient to say that we agree with the Subordinate Judge that it is proved that the appellants are no more than benamidars for other persons.

4. Next it is contended that even if the appellants are benamidars they are entitled to maintain the application. All the reported cases upon the question whether a benamidar can execute a decree as the transferee thereof seem to have been decided by the Calcutta High Court, and we have been referred in the course of the arguments to a number of them. The net result of the Calcutta cases seems to be that a benamidar is not entitled to take out execution of a decree as the transferee thereof, but if he succeeds in doing so his application for execution may in some cases be sufficient to save a subsequent application by the real decree-holder from the bar of limitation. The question whether a benamidar may take out execution of a decree as the transferee thereof does not seem to have been decided by any other High Court. But this Court agreeing with the Bombay and Madras High Courts and differing from the Calcutta High Court has held that a benamidar may bring a suit of any kind in his own name, see Yad Ram v. Umrao Singh ILR (1899) All. 380 which was a suit for sale; Nand Kishore Lal v. Ahmad Ata ILR (1895) All. 68. which was a suit for possession; Bachcha v. Gajadhar Lal ILR (1905) All. 44 which was a suit for partition, and the very recent case of Parmeshwar Dat v. Anardan Dat ILR (1915) All. 113 which was a suit for sale on a mortgage. It was pointed out by Sir Arthur Strachey in the case of Yad Ram v. Umrao Singh, cited above, that in those cases which have affirmed the right of the benamidar to sue, the right has been based partly on the fact that he is the transferee named i