JUDGMENT
Kulwant Sahay, J.
1. This is an appeal on behalf of the assignee of a decree against the order of the Subordinate Judge of Gaya, dated the 27th February 1923, where by he allowed the objection to the execution of the decree made on behalf of the original decree-holder and some of the judgment-debtors.
2. It appears that the original decree-holder, Mr. P. Lal, held a mortgage of certain properties under a mortgage-deed, dated the 4th December 1903 executed by two persons, Janki Singh and Ramrachha Singh. He obtained a preliminary mortgage-decree on the basis of this mortgage on the 8th of December 1917 and a final decree for sale on the 2nd December 1918. He took out execution of the decree in Execution Case No. 103 of 1919 sometimes in March 1919. During the pendency of this execution case he assigned his decree to the present appellant under a deed of sale dated the 11th of May 1919. This deed was registered on the 27th of May 1919 and at the time of the execution of the deed Mr. P. Lal made over to the transferee an application signed by him in order to file the same in the execution case for substituting his name in the execution proceedings in place of the original decree-holder. The petition, however, was not filed, and the execution case was struck off on the 18th of June 1919. According to Mr. P. Lal, the entire amount of the consideration for the sale, namely, Rs. 23,200-7-7 was not paid at the time of the execution or registration; but a sum of Rs. 17,000 only was paid to him at the time of the registration before the Registrar and the balance of Rs. 6,200 and odd has not been paid up till now. He objected that so long as the balance of the consideration had not been paid the assignee of the decree was not entitled to execute the decree. He further alleged that the assignee was a mere benamidar for two persons Idal Singh and Govind Prasad Singh who were judgment-debtors under the decree and that the assignee could not, therefore, execute the decree. Similar objections were taken by the judgment-debtor, Musammat Avadh Kaur.
3. The learned Subordinate Judge has held that Rs. 6,200 odd out of the consideration money has not been paid by the assignee to the original decree-holder and that the assignee could not, therefore, take out execution until the balance of the consideration money had been paid. He further held that the assignee was a benamidar for Idal Singh and Govind Prasad Singh. It was, however, conceded before him that the fact of his being a benamidar would not debar him from executing the decree; but he held that he could execute the decree subject to the equities which the mortgagor judgment-debtors had against the real transferees, namely, the mortgagee-judgment-debtors Idal Singh and Govind Prasad Singh. It may be stated here that Idal Singh and Govind Prasad Singh were impleaded in the mortgage suit as subsequent purchasers of some of the mortgaged properties.
4. Against this order the assignee comes in appeal to this Court.
5. The contentions raised on behalf of the appellant are: (1) That the entire amount of the consideration money has been paid to the original decree-holder and that there was nothing due to him; (2) that the assignee was not a benamidar for Idal Singh and Govind Prasad Singh; (3) that his right to execute the decree cannot be made conditional upon equities which the mortgagor judgment-debtors may have against the mortgagee judgment-debtors for whom he is said to be the benamidar; and (4) that such questions cannot be allowed to be raised in the present execution and the remedy of the original decree-holder, if any, lay in a separate suit.
6. As regards the first contention it is clear upon the evidence that the entire-amount of the consideration money was not paid and has not been paid till now. The evidence on behalf of the assignee on this point consists of the deposition of the assignee himself, Babu Sheo Prashad Singh, and his karpardaz Gajadhar Singh. Babu Sheo Prasad Singh states that the entire amount of Rs. 23,200 odd was taken by him to the Registration Office in order to pay the same to the transferor in the presence of Sub-Registrar, that out of this sum Rs. 17,000 was in currency-notes and the balance in silver, that the transferor Mr. P. Lal refused to count the money in the Registration Office and asked the cash in silver to be taken to the Dak Bungalow at Gaya where he was staying, saying that he would receive the same there, that, therefore, Rs. 17,000 was paid to him before the SubRegistrar and that the balance was sent to him through Gajadhar Singh to the Dak Bungalow where it was paid to Mr. P. Lal. We find on the back of the sale-deed an endorsement made by the Registrar to the effect that Rs. 17,000 was paid in Government currency-notes in his presence, and we also find below this endorsement of the Sub-Registrar an endorsement made by Mr. P. Lal himself to the effect that he received Rs. 17,000 in presence of the SubRegistrar. I fail to understand why if the entire amount of the consideration money was ready the whole of it was not paid before the Sub-Registrar. I find it hard to believe that Mr. P. Lal would have refused to accept the cash in silver before the SubRegistrar, or that Babu Sheo Prashad Singh would not have informed the Sub-Registrar that the whole of the consideration money was ready and have an endorsement made by him that the entire amount had been paid. Babu Sheo Prashad Singh says that he did not go to the Dak Bungalow as the day was very hot and the balance of Rs. 6,000 odd was taken to the Dak Bungalow by Gajadhar Singh. Therefore, he does not pledge his oath as regards the actual payment of the Rs. 6,000 odd to Mr. P. Lal. Gajadhar Singh no doubt swears that he took Rs. 6,200 to the Dak Bungalow and made it over to Mr. P. Lal. But Mr. P. Lal has given his own evidence and swears that this sum was not paid to him; he swears that he received only Rs. 17,000 before the Sub-Registrar and that the balance was not ready and that Sheo Prashad Singh told him that he had not got that sum with him then and that he would pay it shortly after and that he had promised that unless he paid the amount he would not file in Court the application which Mr. P. Lal had signed and given to him in order to be filed in the execution case. I have no reason to disbelieve the testimony of Mr. P. Lal.
7. The deed of sale, as I have said, was registered on the 27th of May 1919 and we find that on the 2nd of June 1919 Mr. P. Lal filed an application in the execution case in which he asserted that he had received only Rs. 17,000 out of the consideration money and that Rs. 6,200 was still due to him, that the assignee had agreed to pay up the said sum of Rs. 6,200 before putting in the petition for substitution signed by him, and he submitted that his name could not be removed altogether from the execution record so long as the sum of Rs. 6,200 was not paid to him. We further find that a notice was given to Babu Sheo Prashad Singh demanding the payment of Rs. 6,200, and we have on the record a special power-of-attorney, dated the 4th June 1919, executed by Mr. P. Lal in favour of his Pleader Munshi Ishwari Prashad empowering him to realise the sum of Rs. 6,200 from Babu Sheo Prasad Singh who gave him notice of demand for the same. The Pleader Babu Ishawari Prasad has been examined as witness in this case and he swears that he gave notice to Babu Sheo Prashad Singh for recovery of the money. He further says in his evidence that he saw Mr. P. Lal at Gaya when he had gone there to register the deed and that Mr. P. Lal gave him hurried instructions either at the Dak Bungalow or at the Railway Station to give notice to Sheo Prashad Singh and to realise the money from him. An account book has been produced on behalf of the appellant which contains an entry to the effect that a sum of Rs. 23,350 had been remitted from his deorhi to Gajadhar Singh at Gaya for the purpose of execution of the sale-deed in respect of the decree of Mr. P. Lal. The learned Subordinate Judge has, however, refused to place any reliance upon this account book and I see no reason to differ from him. I am, therefore, of opinion that the payment of Rs. 6,200 odd out of the consideration has not been made and is still due.
8. The question then arises as to whether the non-payment of a part of the consideration money would debar the assignee from executing the decree. It has been contended by Mr. Manohar Lal that the transfer was complete on the execution and registration of the deed and, that if any sum was due to the transferor on account of the consideration money, his remedy lies by a regular suit, and that he could not object to the transferee executing the decree. Now, this would depend on the intention of the parties. If it was intended that the title should pass on execution and registration of the deed even if a portion of the consideration had not been paid, then no doubt the assignee is entitled to execute the decree; but on the other hand, if the intention of the parties was that the title should pass only after payment of the full amount of the consideration money, then the assignee is sot entitled to execute the decree so long as the balance of the consideration money is not paid. Upon the evidence and the circumstances of the case I am clearly of opinion that the intention of the parties was that title should not pass until the entire amount of the consideration had been paid. It is contended on behalf of the appellant that Mr. P. Lal made over the registration ticket to Gajadhar Singh with an endorsement that the deed should be returned to him by the Registrar; and it is argued that this amounted to a delivery of the deed and to an expression of intention that title did pass although the full amount of the consideration had not been paid. He further relies on the fact that Mr. P. Lal made over a petition and vakalatnamah duly signed by him to the transferee with a view that the same might be filed in the execution case and that the transferee might get his name substituted as a decree-holder; but it must be remembered that this petition and vakalatnamah were never filed in the execution case, and the mere delivery of the deed of sale would not entitle the transferee to have his name substituted unless and until the application signed by Mr. P. Lal was filed and that this application could only be filed if Mr. P. Lal had authorised his Pleader to file it. We have, however, the positive evidence of Mr. P. Lal that he did not authorise his Pleader to file this petition until the balance of the consideration money was paid, and the fact of the petition not being filed at all, lends a good deal of support to the statement of Mr. P. Lal. Furthermore, the mere delivery of the deed does not clearly show the intention that the title did pass, because the very nature of the transaction was such that without the further authority and direction of Mr. P. Lal no action could be taken upon that deed of sale. Then the deed of sale merely bore an endorsement of payment of Rs. 17,000 out of the consideration money and it did not in any way prejudice Mr. P. Lal because he could always say that the deed only showed payment of a part of the consideration money and not the whole of it. Then the petition filed on the 2nd of June 1919 also showed that the intention was that title did not pass. It is unnecessary to refer to the authorities cited on behalf of both parties as to whether or not title passed on mere execution and registration of the deed. The authorities are conclusive on the point that the question is one of intention and has to be decided upon the evidence in each case.
9. The next point raised is that the assignee is not a benamidar for Idal Singh and Govind Prasad Singh. It is unnecessary to decide this point because it is conceded before us that even as such benamidar he is entitled to execute the decree.
10. As regards the direction of the learned Subordinate Judge that the assignee can be only allowed to execute the decree subject to such equities as the original mortgagor judgment-debtors may have against the transferee judgment-debtors. I am clearly of opinion that such a direction is not warranted by law. Section 49 of the C.P.C. provides that every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder and, therefore, in the present case, all that the mortgagor judgment-debtor can insist upon is that whatever equities he had against Mr. P. Lal can still be enforced against the transferee; but he cannot insist that whatever equities the mortgagor judgment-debtor may have against the mortgagee or purchaser judgment-debtor can be enforced against the purchaser of the decree. We are not in a position to say what these equities are. It is conceded by Mr. C.C. Das who appears for the objecting judgment-debtor that the decree must be executed as it stands and the properties sold according to the directions contained in the decree.
11. Lastly, it has been contended that the objection as regards non-payment of a part of the consideration money and as regards the transferee being a benamidar for some of the judgment-debtors cannot be raised in the present proceedings. I see nothing in law to prevent these matters being raised in the present proceedings. Order XXI, Rule 16, provides that the decree shall not be executed at the instance of the transferee without notice of the application being given to the transferor and the judgment-debtor, and the object of such notice is to enable the transferor and the judgment-debtor to raise such objections as regards the assignment as may be available to them. The question whether title passed under the assignment is clearly a question which can be taken by the assignor as well as the judgment-debtor. Reliance has been placed upon the provisions of Section 47 of the Code and it has been contended that only such questions can be allowed to be raised as may arise between the parties to the suit or their representatives and relating to the execution, discharge or satisfaction of the decree and it has been argued that the question raised here is not between the parties to the suit but between one of the parties and his transferee. This may be so as between the transferor and the transferee but the transferee is clearly a representative of the decree-holder and as such the question can be raised as between him and the judgment-debtor.
12. I am, therefore, of opinion that the appellant cannot be allowed to execute the decree so long as he does not pay the balance of the consideration money to the original decree-holder. Subject to the variations in the order of the Subordinate Judge as regards the right of the judgment-debtor to enforce any equities which he may have as observed above, the order of the learned Subordinate Judge must stand. The appeal must be dismissed with costs.
Ross, J.
13. I agree.