1. This is an appeal by the plaintiffs against a decree of a Subordinate Judge dismissing their suit for a declaration which was asked for to the effect that a sale-deed, dated 25th April 1924, by defendant 2 to defendant 1, was void against the plaintiff-appellants and that the property which the said sale-deed purported to transfer might be attached and sold in execution of a decree of the appellants. The suit is really between rival decree-holders, the plaintiffs and defendant 1, Sardar Girwar Singh. The plaintiffs had a mortgage-decree No. 550 of 1912 against Ude Singh, defendant 2. The property which was mortgaged was sold on that decree but was insufficient to satisfy the decree; and on 4th September 1920, the plaintiffs obtained a decree under Order 34, Rule 6, Civil P.C. On 18th April 1921, defendant 1, Risaldar Major Girwar Singh, who is remotely connected with defendant 2, obtained a simple money-decree No. 119 of 1921 against Ude Singh on the basis of two promissory-notes.
2. It is now argued that Girwar Singh did not take out execution of his decree; but we may point out that, at the time his decree was passed, the property in suit, which is the only property of his judgment-debtor Ude Singh, was under attachment on a decree of the appellants and that attachment remained in force until 10th March 1924, when the execution case of the appellants was struck off the file. There was an order of 9th June 1919, restraining Ude Singh from transferring his property, and this forms the first ground of appeal before us but we hold that injunction terminated when the execution case was struck off on 10th March 1924. It was under these circumstances that the sale-deed was executed by defendant 2 in favour of defendant 1 on 25th April 1924 and the consideration in that deed is expressed as Rs. 2,384. It was set off by the debt due from defendant 2 to defendant 1 on decree No. 119 of 1921.
3. The appeal before us has been mainly argued on ground 2, that this sale-deed was collusive and without consideration inasmuch as the decree, which is mentioned as consideration was timebarred and not enforcible in law. Assuming that the decree of defendant 1 against defendant 2 was, in fact, timebarred at the date of execution of the sale-deed, we consider that it would still form a good consideration for the sale-deed; and in this connexion we would refer to Gajadhar v. Jagannath A.I.R. 1924 All. 551, where it was held that a time barred debt can constitute a valid antecedent debt as consideration for a sale-deed executed by a father of a joint Hindu family alienating joint and ancestral family property. The reason for this is that such a debt is not extinguished when the remedy becomes barred by limitation, and it is only in the case mentioned in Section 28, Lira. Act, that the right as well as the remedy is extinguished. There is nothing whatever in the definition of 'consideration' in Section 2(d), Contract Act, to indicate that a time barred debt does not form a good consideration.
4. We consider, however, that the appellants have failed to prove in the present case that this decree was time barred at the date of the sale-deed in question. In para 4 of the plaint the appellants attack this sale-deed on various grounds, but they do not allege that the decree in question was time barred at the date of the sale-deed. Consequently, no issue on this point was framed. The mere fact that argument was addressed to the lower Court on this point is not sufficient to remedy this defect in pleadings. Further, although defendant. 1 gave evidence yet no question whatever was put to him in cross-examination on this point. Under these circumstances, we find that it is not proved that the decree No. 119 of 1921 was time barred at the date of the sale deed of 18th April 1921. We agree with the lower Court that there is no evidence of collusion. Accordingly, we dismiss this appeal with costs.