Mitter and Norris, JJ.
1. It appears that the appellant-defendant No. 1 on the 16th of April 1878 obtained a decree against the defendant No. 2, Krishna Mohun Barik, declaring his mortgage lien over the property in dispute, as well as other properties not in suit based on a bond, dated 17th Falgun 1283, alleged to have been executed in his favour by the defendant No. 2. On the 18th Bhadro 1285, corresponding with the 2nd September 1878, the defendant No. 2 sold the property in dispute to one Ashruf Sheik, ancestor of the plaintiffs-respondents before us.
2. In execution of the decree obtained by the appellant against the defendant No. 2, the property in dispute was attached. The plaintiffs-respondents thereupon intervened and claimed the release of the attached property. Their claim was rejected.
3. The present suit was brought to set aside the order rejecting their claim, and it is mainly based upon the ground that the bond, dated 17th Falgun 1283, and the decree thereupon, dated 16th April 1878, were fraudulent transactions resorted to by the defendant No. 2, in collusion with the defendant No. 1, in order to defeat his creditors.
4. The Court of First Instance dismissed the plaintiffs' suit, but on appeal the District Judge, reversing the decree of the Munsif, has awarded a decree in favour of the plaintiffs, finding the facts stated above, which form the basis of the suit, as established upon the evidence.
5. The only question that has been argued before us in this second appeal is that taken in the third ground of appeal, which is to the following effect: 'For that the Court below ought to have held that the plaintiffs having bought the property subsequently to the mortgage-decree was not entitled to question the validity or bonafides of the said decree which was absolutely binding on the plaintiffs.' In support of this contention the learned vakeel for the appellant relied upon the case of Bhowabul Singh v. Bajendra Protab Sahoy 13 W.R. 157 : 5 B.L.R. 321. We are of opinion that this contention is not sound. It is quite clear that, if defendant No. 2 could be permitted to establish by evidence that the bond and the decree in favour of the appellant were fraudulent, the plaintiffs-respondents are certainly entitled to do so.
6. Now, Section 44 of the Evidence Act says: 'Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it or was obtained by fraud or collusion.'
7. The contention of the appellants is, therefore, opposed to the express provision of Section 44 of the Evidence Act; neither does the case cited before us support it. The facts of that case are briefly these: The plaintiff Rajendra Protab Sahoy was a defendant in a suit brought against himself and three other persons. It was alleged by him that the plaintiffs sold their rights to the property in dispute to him in the name of one Bhowabul Singh, who was substituted as plaintiff. Ultimately a decree was passed in favour of Bhowabul Singh against Rajendra Protab Sahoy and the other defendants in the suit. It was further alleged that, since his purchase of the property in dispute, he, Rajendra Protab Sahoy, remained in possession of it although the name of his benamidar, Bhowabul Singh, was used.
8. The immediate cause which, led to the institution of the suit was, as alleged by the plaintiff, that Bhowabul Singh, in collusion with one Chutterbhooj, caused a decree to be passed against himself in favour of Chutterbhooj, and in execution of that decree, caused the property in dispute to be attached; that the plaintiff Rajendra Protab Sahoy intervened and claimed a release of it on the ground that it belonged to himself and not to Bhowabul Singh. His intervention being unsuccessful, he was compelled to bring that suit for a declaration of his right.
9. A Division Bench of this Court held that the decree which was obtained by Bhowabul Singh against the plaintiff Rajendra Protab Sahoy was conclusive evidence of the title of the former against the latter, and any titles supposed to have been vested in the plaintiff prior to that decree could not be set up in support of the plaintiff's claim. The decree in question was not impeached as invalid on the ground of collusion or fraud, but on the ground that it was a sham proceeding, in which the nominal plaintiff was really another name for the real defendant. The Court observed as follows: 'The plaintiff, on the other hand, denies that except under Sections 259 and 260 of the Code of Civil Procedure, there is any restriction whatever on the rights of parties in this country to show the real nature of a benami transaction, and he contends that the rule as to the conclusiveness of decrees must be subject to the right of any of the parties to show for whose benefit the suit was carried on.'
It is on this point that our judgment chiefly turns. I think that there is no such general exception as is contended for by the plaintiff to the rule that a decree of Court is final and conclusive between the parties. It seems to me that it would lead to endless confusion if the defendant on the record could show that, so far from being really a defendant, he was the plaintiff; that so far from judgment having been recovered against him, he had really recovered judgment. Not a single instance has been adduced before us of the benami system having been carried so far, and though it may be too late for this Court to abolish that pernicious system to the extent to which it is established, it is highly desirable not to introduce it where it is as yet unknown.
It is hardly necessary to observe that the case before us stands quite apart from those cases where a third person who is not on the record at all, comes in to show that a suit was carried on really for his benefit. It also stands apart from those cases where a person on the record seeks to show that a suit was carried on really against a person who was not a party to the suit. This, though a highly inconvenient practice, has been very frequently allowed, and to such cases the present decision does not apply.
Nor need we consider in this case the reasons why a person, against whom an adverse decree has been obtained, is allowed in some cases to show cause why the decree should not be executed. No such question arises here.
10. The last paragraph quoted above shows that the case cited does not decide, one way or the other, the question that is now before us.
11. We are of opinion that the ground taken before us is not valid. The appeal will be dismissed with costs.