Mitter and Macpherson, JJ.
1. We are of opinion that the lower Courts are right in overruling the objection that the present suit does not lie under the provisions of Section 317 of the Code of Civil Procedure. It is found by the Courts below that the property in dispute was purchased by the appellant's mother in her name while the appellant was a minor, in the year 1866; that the mother and not the appellant was in possession; that the mother hypothecated it in a bond executed by her in favour of the plaintiff; that the plaintiff obtained a decree against the mother on that bond, and in execution of that decree purchased this property and obtained possession.
2. These being the facts of this case we do not think that Section 317 applies. There cannot be any doubt that if a creditor of the real owner of a property brings a suit for declaration that it belongs to his debtor and not to the certified benami purchaser, it would not be precluded by the provisions of Section 317. That; faction was intended to prevent fraud, and if it were to apply to a case like, that stated, instead of preventing fraud it would promote fraud.
3. We are, therefore, of opinion that upon the facts found by the lower Court there is no force in the objection that has been taken.
4. We dismiss the appeal without costs as no one appears for the respondent.