HAZARIMAL-NANURAM Vs. GANPATRAO YADORAO PANDE

JUDGEMENT

(1.) THE plaintiff-appellant, Hazarimal Nanuram, brought the present suit in the Court of the Subordinate Judge, first class, Bhandara, for a declaration that a certain motor-car was not liable to be sold in execution of a decree in Civil Suit No. 27 of 1923 obtained by the defendant-respondent, Ganpatrao Yadorao Pande, against one Martandrao. The car, as a matter of fact, has already been sold in execution of the decree, but the parties have agreed that, in the case of the suit being successful, the plaintiff should be paid Rs. 4,400 as the price of the car. The plaintiff's case was that, before attachment of the motor-car before judgment in a suit filed by the defendant, Martandrao had sold the car to him on 16-3-1923. The connected application for attachment was filed on 17-3-23, while the actual attachment was effected on 27-3-23. The defendant's case was that there had been no genuine sale of the car by Martandrao to the plaintiff and that the connected transaction was, in reality, a fraudulent one intended merely to defeat the attachment effected at the instance of the defendant. The lower Court, after a lengthy consideration of the evidence, came to the conclusion that there had been no genuine sale of the car by Martandrao to the plaintiff and that the whole transaction was merely a fraudulent device intended to shield the car from Martandrao's other creditors. The suit was accordingly dismissed.

(2.) THE sale transaction is evidenced by two receipts (Exs. P. 2 and P.

(3.) A great deal seems to me in the present case to hang on the evidence of Mr. Palsole pleader (P. W. 9). This witness admits having been present at Amgaon when the two receipts (Ex3. P. 2 and P. 3) were executed. He had been acting both for the plaintiff and for Martandrao in various cases they were concerned in. According to him, he was called to Amgaon in connexion with certain civil cases by Martandrao and reached there early on the morning of the 16th of March 1923. Negotiations for sale of the car took place that day in his presence, and the plaintiff agreed to accept the car in full satisfaction of what was due under the three bonds and the receipt referred to above. There can be little doubt but that whatever the nature of the transaction between the parties to this case was, it was carried through on the advice, and under the auspices, of this witness who has frankly admitted that he knew that Govindsingh, Ganpat Bhau and others were on the point of attempting to effect an attachment of the motor-car in question. The witness explains that, as he was satisfied that the car was likely to be attached, even although at the moment the attaching creditors could not find it, he felt disposed to show preference to the plaintiff over other creditors and so induced Martandrao to sell the car to the plaintiff. Much has been made of the fact that shortly after the sale of the car, Martandrao, at the instance of the plaintiff, drove the car to Gondia. leaving Amgaon at the somewhat unusual hour of 4 a.m. Very obviously, every endeavour was being made by Martandrao as well as the plaintiff and this witness to get the car out of the way as quickly as possible. The story is that no suitable place for keeping the car could be found in Gondia, and the party accordingly went on to Dongargarh, where enquiry is said to have been made for a truck in order to send it to Calcutta for sale. Dongargarh was obviously selected on the advice of the witness because it had occurred to him that there would be difficulties in the way of attachment there, Dongargarh being situated in a Feudatory State.