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Guljarkhan Abdul Gafurkhan Sarguro Vs. Husenkhan Vaidkhan Sarguro - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 151 of 1936
Judge
Reported inAIR1937Bom476; (1937)39BOMLR917
AppellantGuljarkhan Abdul Gafurkhan Sarguro
RespondentHusenkhan Vaidkhan Sarguro
Excerpt:
.....void and the property was liable to attachment and sale. the trial court decreed a's suit; but on appeal the appellate court raised an issue as to whether the suit fell under section 53 of the transfer of property act, 1882,-although that point was not taken in the pleadings-, and answering it in the affirmative, held that the suit was not maintainable as it was not instituted in a representative capacity as provided by that section :-;(1) that as the point that this was a suit under section 53 of the transfer of property act was not pleaded, as it ought to have been, under order viii, rule 2, of the civil procedure code, 1908, the lower appellate court was wrong in allowing it to be raised before it;;(2) that a suit filed under order xxi, rule 63, of the code need not necessarily be..........him by opponents nos. 2 and 3. that intervention succeeded, and thereupon the applicant filed a suit for a declaration that the sale-deed on which the opponents based their claim is void, and that the property is liable to be sold. that application was made under order xxi, rule 63. the trial judge decreed the plaintiff's suit, but on appeal the appellate court raised an issue, is this suit under section 53 of the transfer of property act? and held that it was, and that therefore the suit was not maintainable. the judge, therefore, allowed the appeal without going into the merits. now, in the first place, the point that this is a suit under section 53 of the transfer of property act, and should therefore have been by the plaintiff on behalf of himself and all other creditors was not.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application in revision against an order made in appeal by the First Class Subordinate Judge of Ratnagiri. The position is that the present applicant obtained a money decree against opponents Nos. 2 and 3, which he applied to execute, and opponent No. 1 intervened on the ground that the property had been sold to. him by opponents Nos. 2 and 3. That intervention succeeded, and thereupon the applicant filed a suit for a declaration that the sale-deed on which the opponents based their claim is void, and that the property is liable to be sold. That application was made under Order XXI, Rule 63. The trial Judge decreed the plaintiff's suit, but on appeal the appellate Court raised an issue, Is this suit under Section 53 of the Transfer of Property Act? and held that it was, and that therefore the suit was not maintainable. The Judge, therefore, allowed the appeal without going into the merits. Now, in the first place, the point that this is a suit under Section 53 of the Transfer of Property Act, and should therefore have been by the plaintiff on behalf of himself and all other creditors was not pleaded, as it ought to have been, under Order VIII, Rule 2, and that being so, I think that the lower appellate Court ought not to have allowed the point to be raised. I may say, however, that I am by no means satisfied that a suit brought under Order 'XXI, Rule 63, by the judgment-creditor, must in all cases be filed on behalf of the plaintiff and all other creditors, notwithstanding a note to that effect in Sir Dinshah Mulla's book on the Transfer of Property Act. I do not see why the creditor should be compelled to prove that the document was made with intent to defeat and delay creditors generally, if he only wants a declaration in a limited form that the transfer is void as against him. Such a declaration would leave the transferee entitled to any balance of the proceeds of sale after satisfying the execution creditor, and it may well be that the declaration made in this Case by the trial Court was unnecessarily wide, and should have been confined to the interest only of the plaintiff. However, that is a point which the lower appellate Court can deal with when it disposes of the appeal on the merits. In my opinion the lower appellate Court was wrong in allowing the appeal on. the preliminary point. The decree of the lower appellate Court is set aside, and the case will be sent back to the lower appellate Court to be dealt with on the merits on the footing that the suit is well-constituted. The respondents must pay the costs of this application.


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