JUDGMENT

Iqbal Ahmad, C.J. - This is an appeal by Chandra Shekhar and Balak Ram Plaintiffs arising out of a suit for a declaration that the house in dispute was liable to attachment and sale in execution of a decree for costs obtained by them in suit No. 36 of 192. Three persons were arrayed as Defendants in the present litigation. Manohar Lal was Defendant No 1 and his two minor sons Ganesh Datta and Chandra Datta were Defendants 2 and 3.

2. Suit No. 36 of 1928, was brought by Ganesh Datta and Chandra Datta minors against Chandra Shekhar and Balak Ram for recovery of a certain amount of money; Manohar Lal acted as next friend of Ganesh Datta and Chandra Datta in that suit. That suit was based on the allegation that Ganesh Datta and Chandra Datta had advanced by way of loan the amount claimed to Chandra Shekhar and Balak Ram. Chandra Shekhar and Balak Ram, however, pleaded that the amount in suit was not advanced to them by way of loan but was, as a matter of fact, deposited with them by Manohar Lal as his (Manohar Lal's) contribution to the funds of a particular partnership in which Manohar Lal had entered with them (Chandra Shekhar and Balak Ram)

3. The trial Court decreed suit No. 36, but on appeal this Court accepted the defence put forward by Chandra Shekhar and Balak Ram and dismissed that suit with costs.

4. Chandra Shekhar and Balak Ram applied for the execution of the decree for costs by attachment of the house in dispute alleging that Ganesh Datta and Chandra Datta judgment-debtors were owners of the house. Manohar Lal then objected under Order 21 Rule 58 CPC claiming that the house belonged exclusively to him and was not liable to attachment and sale in execution of the decree for costs held by the Plaintiffs. The objection of Manohar Lal was allowed and the house was released from attachment.

5.The suit giving rise to the present appeal was then brought by Chandra Shekhar and Balak Ram Manohar Lal contested the suit mainly on the allegation that the house was his self-acquired property and was not liable to sale in the decree for costs obtained by the Plaintiffs in suit No. 36. Both the Courts below agreed in holding that Manohar Lal purchased the house from his own private savings and was, as such, the sole owner of the house. This finding cannot be and is not, challenged in second appeal.

6. It was, however, contended by the Plaintiffs in the Courts below that as Ganesh Datta and Chandra Datta were mere benamidars for Manohar Lal with respect to the deposit that formed the subject of dispute in suit No. 36, the real Plaintiff of that suit must be deemed to be Manohar Lal even though that suit was filed in the names of Ganesh Datta and Chandra Datta. They, therefore, urged that Manohar Lal was liable to satisfy the decree for costs passed in their favour in suit No. 36. This contention of the Plaintiffs was overruled by both the Courts below and the suit was dismissed.

7. The Plaintiffs then filed the present second appeal and it came for hearing before my brothers Ganga Nath and Dar and it was contended be ore them that a decree for costs passed against a benamidar is executable against the real beneficial owner. As the question raised was of general importance the case was referred by them to a full Bench.

8. On the facts stated above the only question that arises for consideration is whether a decree for costs against a benamidar is executable against the beneficial owner and on the answer to that question depends the decision of this appeal. The answer to the question is not free from difficulty and much can be said on both sides. But after giving the matter my best consideration I have arrived at the conclusion that the answer to the question must be in the negative.

9. In arriving at this conclusion I have not overlooked the long series of decisions which establish that a benamidar, even though he has no beneficial interest in the property standing in his name, is competent to sue in his own name and that the decisio