1. The suit that has given rise to the present appeal was one for declaration of title to and recovery of possession of some landed properties. The facts which are relevant for the purposes of the present appeal are briefly those : The plaintiff obtained a money decree against the predecessors of defendants 1 to 5 and defendant 6 and on 12th March 1903 in execution of that decree he attached the entire property in suit. On 18th April 1903 there were two claim cases tiled against that attachment. One was in respect of the one-third share of the property and the other was in respect of the remaining two-thirds. The first claim was rejected, but the second case that was brought by one Nanda Kumar Chatterjee was allowed on 11th May 1903 and the two-thirds share was thereupon released from attachment. During the pendency of the claim case however Nanda Kumar sold the two-thirds share to defendant 7. This was on 19th April 1903. On 19th May 1903 the one-third share was purchased by the plaintiff at an auction sale and this sale was confirmed on 16th September 1903. Thereafter in the year 1914 the plaintiff started an execution case (Case No. 45 of 1914) praying for sale of the two-thirds share on the allegation that defendants 1 to 5 ware the real purchasers at the sale of 19th April 1903 and defendant 7 was nothing but a benamidar for them. Some objections wore filed in this execution case by defendants 1 to 5 but the two-thirds share was ultimately purchased in auction by the plaintiff.
2. This was on 19th September 1916 and this purchase by the plaintiff was confirmed on 26th May 1917 and symbolical possession was given to the plaintiff. On the basis of this purchase as also the purchase of he one-third share on 16th September 1903 the plaintiff brought a suit for declaration of title to and recovery of possession, the suit that has given rise to the present appeal. Defendants 1 to 5 did not contest and the contest so far as it related to the two-thirds share was between the plaintiff on one side and defendant 7 alone on the other, the case of defendant 7 being that he was not the benamidar for defendants 1 to 5, but the real purchaser at the sale by Nanda Kumar on 19th April 1903. Both the Courts below dismissed the plaintiff's case as regards the one-third share on the ground that so far as this share was concerned plaintiff had no cause of action; and as regards this one-third share there is no appeal before us. As regards the two-thirds share the first Court dismissed the plaintiff's suit holding that defendant 7 was the real purchaser and not the benamidar for defendants 1 to 5. This decision of the Court of first instance as regards the two-thirds share was reversed by the Court of appeal below and the appellate Court gave a decree to the plaintiff in respect of the two-thirds share, finding that defendant 7 was the benamidar for the real purchasers-defendants 1 to 5 at the sale on 19th April 1903. Defendant 7 has appealed to this Court.
3. On behalf of the appellant it was in the first place contended before us that the lower appellate Court when it found that the evidence on the source of money that was actually paid for the purchase was not clear was wrong in law in holding that the ostensible purchaser was not the real purchaser at the sale. It is true that the source of money is a very important test in deciding a question of benami. But there is no authority for the proposition that unless the source is established there can never be any finding of benami however good and numerous other facts and circumstances there may be pointing to such a 'finding. In the present case the learned Judge although ha was of opinion that the evidence on the source of money actually paid for the purchase is not very clear, came to a number of clear findings bear-in;.; on the point. He found that about the time of the conveyance of 19th April 1903 defendants 1 to 5 had borrowed a substantial sum of money. He found that at the time of the transaction the defendants were in funds. He found further that the conveyance was for the real benefit of defendants 1 to 5. He further found that defendant 7 abstained from making any claim or taking any steps in the execution proceedings during the years 1914 to 1917.
4. He found moreover that defendant 7 had admitted that he was never in possession of the property and that the possession was not with defendant 7 but with defendants 1 to 5. These findings were, in my opinion, abundant for the conclusion that the transaction was a benami one and that defendant 7, the responsible purchaser, was not the real purchaser but the real purchasers were defendants 1 to 5.
5. In the lower appellate Court a point was raised by the defence that if defendants 1 to 5 were the real purchasers at the sale of April 1903 the plaintiff in execution of a decree which he obtained against the predecessor-in-interest of defendants 1 to 5 could not lay his hands on the properties in suit. The learned Judge would not allow the defence to raise the point holding that the providing of Section 47, Civil P. C., operated as a bar against him. There was a certain amount of controversy before us on this point. On behalf of the appellant it was submitted that the defendant could raise the question in the present suit while the contention of the other side was that the point could not be canvassed again. Both parties cited a number of case3 in support of their respective contentions. There is no doubt that there was a conflict of decisions on the point raised but before the Full Bench decision in the case of Lakshan Chandra Naskar v. Ramdas Mandal : AIR1929Cal374 the latest decision on the point was in the case of Beni Madhab Mondal v. Rai Charan Ari : AIR1929Cal247 whore an attempt was made to reconcile the conflicting decisions and it was laid down that:
Parties ware precluded from raising or canvassing any question relating to the execution, discharge or satisfaction of the decree in a separate suit or proceeding except by way of defence in a separate suit when the defendant has been kept out of knowledge of the execution proceedings by the fraud of the decree-holder or judgment crediter until after such suit has been brought.
6. There was no question of any such fraud in the present case. That being so, following the decision in the Beni Madhab Mondal v. Rai Charan Ari (2) case as also relying on the observations in the Full Bench decision in the Lakshan Chandra Naskar v. Ramdas Mandal (1) case I hold that the District Judge was right in holding that Section 47, Civil P. C., operated as a bar against the defence raising the point that the plaintiff could not lay his hands on the properties in suit on the ground that as the decree had been against the predecessor of defendants 1 to 5, the plaintiff in execution of that decree, could not proceed against these properties which had been purchased by defendants 1 to 5.
7. The third and the last contention on behalf of the appellant was that Order 23, Rule 1, Civil P. C, operated as a bar against the present suit of the plaintiff for recovery of the property in question. It appears that in the year 1915 the plaintiff instituted a suit--'Suit No. 88 of 1915, for possession of the whole of the property but by a subsequent petition dated 15th January 1917 he gave up his claim to the two-thirds share by an amendment of the plaint. From these facts it was argued that the plaintiff could not entertain, as he has tried to do in the present case any claim to this two-thirds share. In the circumstances of the present case this argument has not, in ray judgment, much substance in it. It was satisfactorily established that if in Suit No. 88 of 1915 the entire property was at first claimed, the claim to the two-thirds share was made through a mistake only and it appears that the plaintiff's purchase of this two-thirds share on which alone a claim to it could be based took place only on 19th September 1916 long after the institution of that suit. This purchase no doubt took place before the petition for amending the plaint was made on 15th January 1917. But this petition was filed several months before the plaintiff's auction purchase of the two-thirds share was confirmed and the plaintiff's title to that share became perfect. In these circumstances the provisions of Order 23, Rule 1, Civil P. C., would not, in my opinion, be applicable to this case. All the three contentions urged on behalf of the appellant therefore fail. The appeal is accordingly dismissed with costs.
8. I agree.