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(Lala) Gopi Chand Vs. Jodhraj Deojit and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All458
Appellant(Lala) Gopi Chand
RespondentJodhraj Deojit and ors.
Excerpt:
- - this court did not consider the question of the appellant being a bona fide transferee in good faith. 4. it is clear on these findings that the appellant cannot plead to be bona fide transferee in good faith. the only question that remains is whether the fact of the judgment-debtor having other property would prevent the application of section 53. 5. it is sufficient to say that the facts found proved by the lower appellate court were sufficient to justify a strong suspicion of collusion between the plaintiff and the judgment-debtor. the finding of the lower appellate court in this case is clearly that this was not so......to prove that the judgment-debtor intended by this transfer to defeat or delay the plaintiff decree-holder. the judgment-debtor had other property to meet the decree and the transfer to the plaintiff was made for adequate consideration. this court did not consider the question of the appellant being a bona fide transferee in good faith.3. in first appeal the district judge held that as the sale by the judgment-debtor was subsequent to his receiving an injunction from the court not to sell this property the transfer must have been made with intent to defraud the decree-holder. he also found that the consideration was not proved at all.4. it is clear on these findings that the appellant cannot plead to be bona fide transferee in good faith. the only question that remains is whether.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiff-appellant for a declaration that certain property which the defendant-respondents have attached, and applied for sale of, in execution of a decree is not liable to attachment and sale. The appellant based his suit on a sale-deed by the judgment-debtor dated 15th October 1927. This sale-deed is admittedly subsequent to the respondent's decree.

2. The trial Court in a rambling judgment held that the transfer was not voidable under Section 53, T.P. Act, because there was no sufficient evidence to prove that the judgment-debtor intended by this transfer to defeat or delay the plaintiff decree-holder. The judgment-debtor had other property to meet the decree and the transfer to the plaintiff was made for adequate consideration. This Court did not consider the question of the appellant being a bona fide transferee in good faith.

3. In first appeal the District Judge held that as the sale by the judgment-debtor was subsequent to his receiving an injunction from the Court not to sell this property the transfer must have been made with intent to defraud the decree-holder. He also found that the consideration was not proved at all.

4. It is clear on these findings that the appellant cannot plead to be bona fide transferee in good faith. The only question that remains is whether the fact of the judgment-debtor having other property would prevent the application of Section 53.

5. It is sufficient to say that the facts found proved by the lower appellate Court were sufficient to justify a strong suspicion of collusion between the plaintiff and the judgment-debtor. The question whether the object of this collusion was to defraud, defeat or delay the decree-holder was a question of fact. It appears to me that when a person gets a decree, he is entitled to execute that decree against any property of the judgment-debtor, and if the judgment-debtor alienates some of his property, he restricts the facility of the decree-holder to execute his decree. It is a question of fact whether his other property is of such an amount and so easily available for satisfaction of the decree as to render the disposal by the judgment-debtor of the particular property immaterial. The finding of the lower appellate Court in this case is clearly that this was not so. It relied on the fact that the decree-holder anticipated trouble in executing his decree if any of the judgment-debtor's property were sold and got an injunction in consequence. As the sale to the plaintiff was for no consideration, it is clear that the plaintiff was aware of the injunction. In these circumstances, the findings of fact of the lower Court justified the further finding of fact that the transfer was for the purpose of defeating or delaying the respondent. In second appeal it is not open to the appellant to question this finding of fact. The appeal, therefore, fails and is dismissed.


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