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Mohammad Asghar Ali and ors. Vs. Sh. Mohammad Ishaq Ali and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All72
AppellantMohammad Asghar Ali and ors.
RespondentSh. Mohammad Ishaq Ali and anr.
Excerpt:
- - i fail to see why the suit as framed is not maintainable. a judgment-creditor who has been defeated at the instance of an intervener in proceedings taken in execution of his decree need not necessarily file a representative suit under section 53, t......chettiar firm (1934) 21 air rang 200 a bench of that court of which dunkley j. was a member held:a creditor whose attachment has been raised and who avails himself of the right given by o.21, rule 63, can sue on his own behalf alone for having the alienation declared void, without mention of any other creditors or other debts.5. in that case the plaintiff alleged that the deed of transfer was a bogus one and was brought about for the purpose of defeating or delaying the creditors. in that case art earlier ruling in r.r.o.o. chettyar firm v. ma sein yin (1928) 15 air rang 1 was followed. the same question came up for consideration before the bombay high court in guljarkhan v. husenkhan vaidkhan,(1937) 24 air rom 476. a learned single judge held:a suit brought under order 21, rule.....
Judgment:

Ismail, J.

1. This is a defendant's appeal arising out of a suit brought for a declaration that the property described in the plaint was attachable and saleable in execution of decree No. 252 of 1928 and that the plaintiff was entitled to get rateable distribution out of the sale proceeds under other decrees in his favour. A declaration was prayed for that the two sale deeds of 22nd February 1934 executed by Hamid Ali in favour of Asgar Ali and others were ineffectual and void as far as the decrees in favour of the plaintiff were concerned. The suit was resisted by the defendant inter alia on the ground that the suit as framed was not maintainable inasmuch as it was not a representative suit on behalf of or for the benefit of all the creditors. The trial Court dismissed the suit on the preliminary ground that the suit as framed was not maintainable. The lower Appellate Court however took a contrary view and held that this was a suit under Order 21, Rule 63, Civil P.C., and the reliefs claimed could be given in the present suit. Learned counsel for the appellant has reiterated the objection taken on behalf of his client in the Courts below. It is contended that if the suit were limited to the relief that the sale deeds in question were fictitious the plaintiff alone could bring the suit on his own behalf. On the other hand if the plaintiff pleaded that the sale deed was fraudulent and was executed with the intention to defeat and delay the creditors it would come within the purview of Sec. 53, T.P. Act, and a representative suit would have to be instituted. It is contended that on the allegations in the plaint the present suit comes within the purview of Sec. 53, T.P. Act, and was rightly dismissed by the trial Court.

2. In the body of the plaint the plaintiff has set out the facts on which the suit is founded. In para. 6 it is stated that the plaintiff had warned defendants 1-8 (vendees) that the defendant 9 (vendor) was liable under several decrees in favour of the plaintiff; that the defendants (vendees) dishonestly and with full knowledge of facts obtained two sale deeds in their favour. There is no mention whatsoever in the body of the judgment that the transfers are null and void as against other creditors. Rule 63, Order 21 of the Code provides that:

Where a claim or an objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute....

3. This suit, as the plaint discloses, is instituted merely to establish the right of the plaintiff and has no concern whatsoever with the possible claims which other creditors may have against the judgment-debtor. I fail to see why the suit as framed is not maintainable. In my judgment it was not necessary for the plaintiff on the facts alleged to bring a representative suit on behalf of or for the benefit of all the creditors. Learned counsel has referred to the case in Chidambaram Chettyar v. R.M.A.R.S. Firm (1934) 21 AIR Rang 302 in which Dunkley J. held:

When a suit is brought under the provisions of Order 21, Rule 63 by an attaching creditor to establish his right to attach and bring to sale certain property and in order to succeed it is necessary to avoid a transfer of property on the ground that the transfer has been made with intent to defeat or delay the creditors of the transferor the suit must be brought in the form of a representative suit on behalf of or for the benefit of all the creditors of the transferor as provided for in Section 53, T.P. Act.

4. A similar view was expressed by the same learned Judge in Maung Tun Them v. Maung Sin (1934) 21 AIR Rang 332. In an earlier case reported in U Maung Nge v. P.L.S.P. Chettiar Firm (1934) 21 AIR Rang 200 a Bench of that Court of which Dunkley J. was a member held:

A creditor whose attachment has been raised and who avails himself of the right given by O.21, Rule 63, can sue on his own behalf alone for having the alienation declared void, without mention of any other creditors or other debts.

5. In that case the plaintiff alleged that the deed of transfer was a bogus one and was brought about for the purpose of defeating or delaying the creditors. In that case art earlier ruling in R.R.O.O. Chettyar Firm v. Ma Sein Yin (1928) 15 AIR Rang 1 was followed. The same question came up for consideration before the Bombay High Court in Guljarkhan v. Husenkhan Vaidkhan,(1937) 24 AIR Rom 476. A learned Single Judge held:

A suit brought under Order 21, Rule 63, Civil P.C., by a judgment-creditor need not in all cases be filed on behalf of the plaintiff and all other creditors. There is no reason 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....

6. In Shrimal Kasturchand v. Hira Lal Hansraj (1938) 25 AIR Bom 289 it was held:

A judgment-creditor who has been defeated at the instance of an intervener in proceedings taken in execution of his decree need not necessarily file a representative suit under Section 53, T.P. Act.

7. This question was lately considered in two unreported cases in this Court. In S.A. No. 1178 of 1935 decided on 1st December 1938, the plaintiff prayed for a declaration that the suit property was attachable and saleable for the recovery of amounts due under the decrees in his favour. The plaintiff's case was that the sale deed set up by the defendant was a mere paper transaction and that no money had passed from the transferor to the transferee and that the sale deed was entirely fictitious. It was further stated that the plaintiff was entitled to bring a suit for his own benefit and for the benefit of other creditors. The learned Judges quoted with approval the case in Guljarkhan v. Husenkhan Vaidkhan (1937) 24 AIR Rom 476 and held that in the circumstances of the case the suit was maintainable. This case was followed in S.A. No. 1980 of 1936. In my judgment there is no statutory provision to prevent the plaintiff from instituting the present suit on his own behalf. In the result I affirm the order of the Court below and dismiss this appeal with costs.


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