GUDDAPPA CHIKKAPPA KURBAR Vs. BALAJI RAMJI DANGE

JUDGEMENT

(1.) THIS is a second appeal from a decision of the Assistant Judge of Dharwar, which has been referred to a full bench, because it raises the question whether the decision of this Court in Sidlingappa v. Hirasa (1907) I.L.R. 31 Bom. 405, S.C. 9 Bom. L.R. 542, is correct.

(2.) THE facts as found by the lower Courts are that in 1923 there was a decree passed against defendants Nos. 1 and 2, who are the present appellants, which decree was in process of being executed. THEn on January 3, 1928, the defendants executed in favour of the present plaintiff what purported to be a sale-deed, and on that deed the plaintiff sues for possession. Both the lower Courts have held that in fact no consideration passed on that sale-deed, that it was part of a fraudulent attempt on the part of the defendants to defeat their creditors, and that the deed on which the plaintiff sues was in effect a benami transaction. On those findings, which bind us in second appeal, the. learned Subordinate Judge dismissed the plaintiff's suit on the ground that to grant a decree in favour of the plaintiff would be to assist him in perpetrating a fraud. THE defendants are still in possession, and the plaintiff, unless he can get a decree for possession from the Court, will not be able to gain any advantage from this alleged sale-deed. In appeal the learned Assistant Judge overruled the decision of the trial Court on the authority of Sidlingappa v. Hirasa (supra).

(3.) IN the present case the fraud which the plaintiff and the defendants perpetrated on the defendants' creditors is a thing of the past, and this Court is not asked, and would certainly refuse, to assist in that. The fact that such a fraud was perpetrated in the past cannot justify this Court at the present time in assisting the plaintiff to perpetrate a further fraud upon the defendant.