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Judgment
Upon the allegations of the plaintiff, his case may be considered on the footing either that the 1st defendant was his agent, or that he was his
benamidar. If 1st defendant was an agent, the plaintiff is entitled to obtain the advantage gained by the 1st defendant in securing a decree upon the
bond. Whether 1st defendant''s action in obtaining the decree was rightful or wrongful is immaterial. This has long been established law (Taylor v.
Plumer 3. M. and Section 562).
If 1st defendant was a benamidar, the result would be the same, for he would be in the petition of a trustee (Sections 91 and 95 of the Indian
Trusts Act, 1882).
The only remaining question is as to the relief to be given. The injunction prayed for cannot be granted u/s 56 clause (b), of the Specific Relief
Act, but if the plaintiff''s case be true he is entitled to the declaration granted by the Munsif subject to the plaintiff reimbursing the 1st defendant the
costs incurred by him in obtaining the decree.
It was contended that such declaration would be fruitless and should not be granted; but we do not agree in this view. Such a, declaration being
binding on the parties would entitle the plaintiff to apply for the execution of the decree u/s 232 of the Code of Civil Procedure, which has been
held applicable to a case like the present Umasoondury Dassy v. Brajonath Bhuttacharjee I.L.R.110, 7l8 .
The Judge was, therefore, wrong in holding that this suit was not maintainable. We accordingly reverse his decree and remand the appeal for
disposal on the merits in the light of the above observations. Costs will abide and follow the result.
No order is necessary on the memorandum of objections as the lower Court''s decree has been reversed.