Wort, J.The only point in this case is whether the application for execution which was the subject-matter of the case in the Court below was barred by limitation. That depends entirely upon the question whether a previous application dated 14th July 1925 was an application in accordance with law. But for the fact that. there are certain authorities supporting, the view of the appellants in this Court, I should have entertained no doubt as to what the proper decision should be. In any event the view I hold is supported by a decision of this Court which is binding upon us, unless the matter were referred to a larger Bench. The reason for such reference however does not, in my judgment appear to exist in this case.

2. One or two facts are necessary for the purpose of deciding the point which as I have said arises in this case for determination. A decree was obtained on 6th March 1923 for a sum of Rs. 30,000 by one Mohammad Anas. I had better state in advance that there were various defendants to this case and that there has been a devolution since the original decree was obtained but no question arises with regard to that matter. The original decree, I should have stated, was obtained on 20th December 1920 for recovery of possession and mesne profits by Mohammad Anas.

3. On 24th August of the same year the decree-holder assigned seven annas interest in the decree to Mohammad Nazir Ahmad in the farzi name of one Mohammad Akhtar. Then the matter proceeded to the ascertainment of mesne profits, the decree of 6th March 1923 being obtained by these two persons the original decree, holder on 20th December 1920 and the assignee.

4. On 14th July 1925 an application was made for execution. This application was made by Mohammad Anas who held 9 annas interest in the decree and by what I may describe as the real assignee, that is to say, Nazir Ahmad and not by Mohammad Akhtar, the benamidar. In course of time this application was struok off; it was struck off for this reason. The Judge before whom that application came declined to decide the question between the so called benamidar and Nazir Ahmad, Mohammad Akhtar, the benamidar, contending that the decree was his and not that of his principal Nazir Ahmad. The parties were referred to the Court to have the matter determined in an action, and ultimately it was held by the trial Courta decision which came to this Court even tually--that Nazir Ahmad was in fact the assignee.

5. On 10th April 1926 a second application for execution was made. On that occasion the benamidar alone made application for execution complying with Order 21, Rule 15, Civil P.C. Perhaps it might be inferred from what I have said, at any rate it was a fact, that the decision in the suit had not been given at the time of the second application, and I suppose it was for that reason that Mohammad Akhtar made the attempt to execute the decree for mesne profits on behalf of himself and the 9 annas proprietor.

6. On 14th March 1927 again, this application was, struck off pending the decision of the suit to which I have just refer, red. A third application was made on 20th December 1928 and on 24th June of the following year the execution case was dismissed as being in fructuous.

7. On 5th March 1935 a fourth application for execution, which was the subject-matter of this appeal was made. The application was made by Mohammad Anas who was the owner of the 9 annas interest and by Nazir Ahmad, the real assignee as he has been described in the deed of assignment by Mohammad Anas. It will be seen that the only question for decision--whether the last application of 5th March 1935 is barred by limitation--depends upon the validity of the application of 14th July 1925, being the first application for execution. If for any reason it is held, as the Judge in the Court below has held, that the first application of 14th July 1925 was not in accordance with law with, in the meaning of Article 182, Limitation Act, then it is clear that all the subsequent applications must necessarily go on one ground alone, that they would be barred by limitation.

8. Now the point can be stated in this way. It has been stated by the Judge in the Court below that the application by what I may describe as the 9 annas proprietor and by Nazir Ahmad (not the benamidar Mohammad Akhtar) who was an assignee under the deed of assignment was not in accordance with law, as the correct view was that the person named in the deed of assignment should make the application as assignee" and not what has been described as the real assignee. Order 21, Rule 16 provides:

Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execration of the decree to the Court which passed it.

9. It is the contention of Dr. Mitter before us that the expression "transferee" at least includes the real transferee, Rulethe been. ficiary under the deed of assignment and does not necessarily refer to the person named in the deed of assignment. As I have already said, I should have entertained no doubt "about the matter, but for certain authorities upon which Dr. Mitter relies. The first of those is the case in Abdul Kureem v. Chukhun 1880. 5 C.L.R. 253. There the question arose whether an ear. Her application was in accordance with law and Mitter, J., in delivering the judgment of the Court, made this statement:

We are of opinion that this contention (that is to say, the contention that u/s 232 of the Code of 1877 the Court executing the decree should not recognize benami transfers) is not valid. The Section says that where a decree is transferred by an assignment in writing, the transferee may apply. The benami system is recognized in this country, and a benamidar is not a transferee of the decree. The Section only authorizes the Court to allow the transferee of the decree to apply for execution.

10. The next decision of the Calcutta High Court on this point is the case in Rughu Nath Singh v. Pareshram Mahata 1883. 9 Cal. 635. I merely mention this decision in passing. The next case is reported in Gour Sunder Lahiri v. Hem Chunder (1893) 16 Cal. 355 a decision of Prinsep and Ghose JJ., to the same effect. A later decision to some extent bearing out the same view of law is the case in Nil Kanta Ghosal Vs. Ram Chand Roy and Others, I would also refer to the case in Balkishen Das v. Bedmati Koer (1893) 20 Cal. 388 a decision of Macpherson and Banerjee JJ. which appears to be a decision holding the opposite view. But there the learned Judges pointed out a distinction which they thought to exist in the two eases to which I have just referred, the one reported in Rughu Nath Singh v. Pareshram Mahata (1883) 9 Cal. 635 and the other in Gour Sunder Lahiri v. Hem Chunder (1893) 16 Cal. 355.

11. Then there are decisions of the Madras High Court. The first is the case in Manikkam v. Tatayya (1898) 21 Mad. 388 Shortly stated the decision in that case was that the actual purchaser of a decree may apply for execution of the decree u/s 232 of the then Civil P.C. being the Code of 1877; and I would observe in passing that Section 232 of the Code of 1877 is in the same terms as Order 21, Rule 16 of the present Code, that is to say, by an assignment in writing or by operation of law. The earlier Code of 1859 did not require an assignment to be in writing. Now the Madras Court has departed from that view in Palanjappa Chettiar v. Subramania Chettiar (1925) 12 AIR Mad. 701 decided by Sir Murray Coutts-Trotter C.J. and Srinivasa Ayyangar, J. The question whether the real assignee in contradistinction to the benamidar was entitled to apply in execution was dealt with by the learned Chief Justice in. these words:

The rule of law that, where a persons name appears of 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 he conies within the words of Order 21, Rule 16, Civil P.C and there has been an assignment in his favour either in writing or by operation of law, seems to me to be no ground for holding that a person otherwise a stranger to the Court can come forward and allege that the decree was not his.

12. The learned Chief Justice then refers to the decision in 21 Mad 3886 to which I have just referred and proceeds to say:

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.

13. The other learned Judge sitting with the Chief Justice delivered judgment to the same effect. I make no comment upon the fact that a Bench of two Judges appears to overrule the decision of a Bench of other two Judges, as in this particular matter, as I have stated at the commencement of my observation, I am supported by an authority of this Court. The decision to which I refer is in Ram Sewak Lal v. Saturhan Deo Sahai A.I.R.1927. Pat. 170.

14. In that case Adami and Allanson JJ. had two questions to decide; first, whether a deed of release could create title; and secondly whether a person other than the beneficiary (not the benamidar) could sue in execution. As regards the first, Allanson, J. is reported to have said this:

It is well established that title cannot pass by admission when the law requires a deed. It was argued on behalf of the respondent that as either the real owner or the benamidar has the right to sue, so the real owner has the right to execute a decree obtained by the benamidar. No authority in support of this proposition was plaoed before us. A decree can only be transferred by assignment in writing or by operation of law.

15. Then the learned Judge proceeded to deal with the question of the deed of release. Dr. Mitter seems to criticize that decision by saying that none of the authorities to which reference has been made in this case has been referred to in the argument or in the judgment which I have just read. But that in no way detracts from the authority of the decision, and as I have said it is a decision which is binding upon us, unless there be reason for referring the matter to a larger Bench which would be in a position to deal with the case. But holding the view that I do, there appears to be no such reason for that procedure. Now it seems to me quite clear, on the plain reading of the rule itself, that the view that should be taken appears on the face of the rule itself. If the interest of any decree-holder in a decree was transferred by an assignment in writing, etc., the transferee under a deed of assignment is the person who is named as a transferee. There can be no doubt about that it is trite.

16. But Dr. Mitter says that we should have regard to the universal practice in India of carrying out transactions in the benami names and he refers us to the decision of the Privy Council in Gur Narayan v. Sheo Lal Singh A.I.R.1918. P.C. 140. There Mr. Ameer Ali in delivering the judgment of the Board makes reference to this practice in these words:

The system of acquiring and holding property and even of carrying on business in names other than those of the real owners, usually called the benami system, is and has been a common practice in the country. There is nothing inherently wrong in it and it accords, within its legitimate scope, with the ideas and habits of the people.

17. Then his Lordship refers to the opinion of their Lordships of the Judicial Committee as stated by Sir George Parwell in Mt. Bilas Kunwar v. Desraj Ranjit Singh A.I.R.1915.P.C. 96 where Sir George Parwell states:

It is quite unobjectionable and has a curious resemblance to the doctrine of our English law that the trust of the legal estate results to the man who pays the purchase money.

18. Then Mr. Ameer Ali proceeds to say:

As already observed, the benamidar has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him.

19. I must say that I fail to understand the argument of Dr. Mitter on this point. It is of course obvious to anyone even with the least experience in this country that this practice of carrying out what is described as benami transactions exists, but it cannot alter the law. If every transaction was carried out in the benami name of another and that custom was universal and there was no departure from it in one single instance, then such custom might be proved and it might perhaps be said that "you have established that custom, the effect of which would be to establish the proposition that where the word transferee is used in a document in India, it means the real transferee and not the bensmidar.

20. It is only in that extreme case that the argument can avail the appellants in my judgment. The transferee under the deed of assignment we are dealing with was Mohammad Akhtar and no other; what rights a real transferee, the beneficiary under the deed, may have for the purposes of this case are neither here nor there. Indeed so far as Order 21, Rule 16 is concerned, it seems to me that the alteration of law which appeared first of all in the Code of 1877, that is to say the requirement that an assignment of the decree should be in writing, was a provision which the Legislature enacted for the very purpose of preventing difficulties of the kind we have to deal with here. It was unsuitable, as their Lordships of the Privy Council point out in one of their decisions in this matter, that questions of this kind should be determined in execution; and that leads me to the other branch of the argument in connexion with this part of the case addressed to us by Dr. Mitter.

21. Whilst these various applications were being made in execution, as we have seen, the action for a declaration that Nazir Ahmad was the beneficiary under the deed was pending in the Court and was ultimately decided. It was contended that this Court gave a declaration in favour of Nazir Ahmad and that, as his right dated back to the application of 14th July 1925, therefore it was shown that he was the person who was entitled to take out the application for execution. That argument begs the question. All that the High Court decided was that Nazir Ahmad was the real owner of the 7 annas interest of the decree, if I may put it in that language. The question whether he was entitled to sue out execution was not decided by any of the Courts in that case and necessarily could not be decided. But it is further contended in this regard that the Subordinate Judge in referring the parties to a properly constituted suit, by inference decided that if the plaintiff succeeded in getting this declared, then he was entitled to apply for execution of the decree. That in my judgment is an argument which cannot be supported. The learned Judge did not commit himself in that way and indeed we know, that that application was eventually struck off. The question was never decided and furthermore there can be no inference-drawn from what actually took place, because it may very well be that the learned Judge was of the opinion that the beneficiary Nazir Ahmad might have joined with the benamidar in making the application and indeed there is no knowing what the ultimate decision of the Subordinate; Judge in the execution proceedings would have been, had the question come to b determined by him.

22. Now the other branch of the case relates to Order 21, Rule 15, Civil P.C. The application which is the subject-matter of this appeal is, as I have said, the fourth application of 5th March 1935. Dr. Mitter would have us disregard the fact that the application was made by the 9 annas proprietor of the decree and by the real owner of the 7 annas of the decree.

23. He would argue that if can be treated as the application of the 9 annas proprietor on behalf of himself and on behalf of the assignee of the 7 annas interest, but the authorities of this Court are against that contention. Atkinson and Jwala Prasad JJ. in A.J. Meik, Esqr., Manager of Barabhum Encumbered Estate, Manbhum Vs. The Midnapur Zemindary Company, Ltd., decided that in order to comply with Order 21, Rule 15, Civil P.C. it was necessary to state that the application was taken on behalf of the applicant and for the benefit and on behalf of other persons entitled to the decree. That was not done in the application of 5th March 1935 and therefore that argument fails.

24. Indeed the question comes back to the first point, namely whether the real owner or the benamidar is the assignee within the meaning of Order 21, Rule 15. Two further cases have been referred, one a decision of Kulwant Sahay and Mullick JJ in Jogendra Prasad Narayan Sinha v. Mangal Prasad A.I.R.1926 Pat. 160 . Kulwant Sahay, J. delivering the judgment of the Court, and the matter which was before them was this. There were two brothers who were entitled to a decree and it was contended by the applicant that there had been a partition between the two brothers and that the applicant was entitled to the whole of the decree.

25. It is unnecessary to state the facts of that case, but the question which came to be determined was whether a certain application upon which the other applications in execution rested was in accordance with law; and Kulwant Sahay. J., made this statement:

It has been held in Bhagwat Prashad Singh Vs. Dwarka Prashad Singh and Others, that under Article 182 Clause (5), Limitation Act, an application is one in accordance with law if the particulars required by Order 21, Rules 11 to 14, Civil P.C. are supplied. In the present case we find that all the particulars "required to be stated in an application for execution by Rules 11 to 11 of Order 21 had been given in the first application.

and he decided accordingly.

26. From one point of view there is an apparent conflict between the case in A.J. Meik, Esqr., Manager of Barabhum Encumbered Estate, Manbhum Vs. The Midnapur Zemindary Company, Ltd., and the case which I am now referring to. It was held in the earlier case that in the application to comply with Order 21, Rule 15 it was necessary to state that the application was enade on behalf of other persons entitled to the decree; but it seems to me that the facts in the two cases are not the same and in any event it will clearly appear that the decision of Kulwant Sahay, J. depended almost entirely upon the view that he held that Order 21, Rules. 11 to 14 had been complied with. Now it is the contention of Dr. Mitter that whatever may be thought of the other points in the case the application of 14th July 1925 was in accordance with law within the meaning of the case to which I have just referred, and therefore, if in accordance with law, can form a valid basis for the subsequent applications. Now, Order 21, Rule 11 makes provision for the particulars which are to be given in an application in execution; the particulars are (a) number of the suit, (b) names of the parties, (c) date of the decree, etc., etc. The second particular is names of the parties.

27. Now, it will be seen that this point does not assist the appellants here, if the first point is decided against them. It comes back again, as I stated earlier in my judgment, to the question whether the proper parties have been named, in other words, whether the assignee and the, 9 annas proprietor took the application for execution, being the first application. If that question is answered in the affirmative, then of course it is quite clear that Order 21, Rule 11 Sub-clause (2)(b) has been complied with, namely the names of parties have been given. But here the contention is that the real assignee not being the person named in the deed of assignment is not the party who ought to have sued out execution. It seems to me that that concludes the matter. The decree-holder A in suing out execution which is stated to be barred by limitation cannot rely upon an earlier application taken out by B, another person, and in no circumstance could it be said that the earlier application taken out by another person (which is substantially the case here) was an application in accordance with law; and as I have said and repeat, the question therefore comes back to the old point whether the assignee named in the deed or the real assignee, as he has been called in the argument, is the proper person who could sue out execution.

28. I have no doubt as I have said what should be the decision on that point. It seems to me that it would be doing violence to Order 21. Rule 16, Civil P.C. to hold otherwise, viz. that the benamidar, the person named in the deed of assignment, must be the person to apply in execution. For those reasons it seems to me that the judgment of the learned Judge in the Court below was right and the appeal fails which must be dismissed with costs.

Yarma, J.

I agree.