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Thaher Unnissa Begum Vs. Sherfunnissa Begum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 486 of 1950
Judge
Reported inAIR1955Mad446; (1953)1MLJ538
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 21, Rules 58 and 63; Transfer of Property Act, 1882 - Sections 53
AppellantThaher Unnissa Begum
RespondentSherfunnissa Begum
Appellant AdvocateR. Gopalaswami Iyengar, ;T.T. Srinivasan and ;A.N. Rangaswami, Advs.
Respondent AdvocateD. Ramaswami Iyengar, Adv.
DispositionAppeal dismissed
Cases ReferredYarakkayya v. Venkata Krishnamaraju
Excerpt:
.....husband bad given the patta to her between the date of the issue of the suit notice to him by the plaintiff and the date of its receipt by him, having come to know of it. this contention must 'fail for three reasons. 'the terms of section 53 must be strictly interpreted';else the floodgates of useless litigation will be opened, and people, like this appellant will set up rejected and time-barred claims and compel decree-holders to waste their time, money and energy in filing suits under section 53 imp leading a number of people, who may or may not have a common interest, to defeat or avoid transfers 'barred as against them'.secondly, there was no allegation by this decree-holder that there was a transfer by the husband in favour of this appellant, his wife, in order, to defeat or delay..........by her not pressing her claim petition and allowing it to be dismissed, and by her not filing a claim suit within a year to get the dismissal set aside, she is barred by 'res judicata', and cannot urge her claims against this decree-holders. he urged that the transfer in favour of the appellant is only inoperative as against this decree-holder, and that too only to the extent necessary to satisfy his claim under this decree, and that it is valid and enforceable subject to the above right of this decree-holder. that may be so. we are not concerned with that question here. the decree-holder can proceed with the sale, free from the appellant's objection, to recover his decree dues, as held by the lower court. it follows that this c. m. a. has to be dismissed, and it is dismissed with.....
Judgment:

Panchapakesa Ayyar, J.

1. This is an appeal by one Thaher-unnissa Begum, wife of Syed Jaffar Mohideen Sahib, the judgment-debtor, against the order of the Principal Subordinate Judge, Salem, dated 14-7-1950, in R. E. P. No. 244 of 1949, in O. S. No. 34 of 1944 overruling her objection to the sale of certain properties, claimed by her to have been granted on 'Saswatha' patta to her by the judgment-debtor, in execution of the decree in O. S. No. 34 of 1944 by the decree-holder, and directing the sale to proceed.

2. I have perused the entire records, and heard the learned counsel on both sides, and see no substance in this C. M. A.

3. The appellant herein had claimed the same properties as hers by virtue of a patta given to her by her husband, the judgment-debtor, and had urged that her husband, the judgment-debtor, had no longer any rights in them except to the rent reserved. But she had not pressed that claim petition with tbe consequence that it was dismissed. She did not file also any suit to set aside the dismissal of the claim petition within the one year allowed by law. The lower Court, relying on the decision in -- 'Kandasami Mudaliar v. Sivagurunatha Mudaliar : AIR1935Mad328 , was inclined, to think that the claim order could not become conclusive against the appellant, because the claim petition was dismissed 'as not pressed and not on merits'. But, a Full Bench of this Court has, later on, in -- 'Cannanore Bank Ltd. v. P. A. Madhavi AIR 1942 Mad 41 (B), held expressly that if a claim petition under Order 21 Rule 58 was not pressed and was dismissed without obtaining the permission of the court to withdraw it without prejudice to tbe rights of the petitioner, the dismissal would amount to an adverse order within the meaning of Order 21, Rule 63, C. P. C. and that the petitioner, if she wished to reopen the matter and assert the same claim, was bound to file a suit within one year from the date of the order.

It has also been held by a Bench of this court in -- 'Yarakkayya v. Venkata Krishnamaraju', AIR 1918 Mad 693 (C). that when the order dismissing a claim petition was not set aside by filing a suit within one year, as contemplated under Order 21, Rule 63, it will become conclusive and the same claim could not be agitated again.' It is obvious therefore that the decision : AIR1935Mad328 , must be deemed to have been overruled by the Full Bench decision quoted above. So, 'res judicata' operated against the appellant, and the appellant had absolutely no right to come and press this stale claim of hers,which had been dismissed, by way of counter in this E. P. On this ground alone, this C. M. A. must be dismissed.

4. The lower court found also that her claim was 'on merits' frivolous and unsustainable, and that her husband bad given the patta to her between the date of the issue of the suit notice to him by the plaintiff and the date of its receipt by him, having come to know of it. That point need not be gone into, in view of my finding that the appellant was barred by 'res judicata' and had absolutely no right to re-agitate that claim of hers which had not been pressed by her and was dismissed, and the dismissal was not sought to be set aside in a suit. But, I may say that there too I agree with the lower court that this woman was given the patta to defeat this decree-holder, and that she was setting up an unsustainable claim that he could not execute the decree by sale of these properties. There is no need to go into the validity of the reasons, as she could not, under the law, set up this claim as against him, as it was barred by 'res judicata',

5. It was then urged by Mr. Gopalaswami Aiyangar that, even so, the decree-holder should have filed a suit, under Section 53, T .P. Act on behalf of all the creditors of his judgment-debtor, in order to avoid the transfer by him (the appellant's husband) in favour of this appellant, and relied on some rulings which need not be discussed as they apply only to cases where the decree-holder has to file a suit. This contention must 'fail for three reasons. First of all, only when a suit is instituted by a creditor, for avoiding a transfer by the debtor, does Section 53 come into operation. It will not come into operation when, as here, there is no suit and only an execution petition is filed by a decree-holder in the course of which a claim is put in on the ground of an alleged transfer and is not pressed. 'The terms of Section 53 must be strictly interpreted'; else the floodgates of useless litigation will be opened, and people, like this appellant will set up rejected and time-barred claims and compel decree-holders to waste their time, money and energy in filing suits under Section 53 imp leading a number of people, who may or may not have a common interest, to defeat or avoid transfers 'barred as against them'.

Secondly, there was no allegation by this decree-holder that there was a transfer by the husband in favour of this appellant, his wife, 'in order, to defeat or delay or to defraud his creditors', and that he was entitled to avoid the transfer on the ground that it had been made with intent to defeat or delay the creditors. Simply because the lower court observed, in its order, that this patta transfer was made with a view to defeat and delay the present decree-holder, Section 53 will not be invoked. It is significant to note that the lower court itself did not say that the transfer was made with, a view to defeat and delay the creditors, but only to defeat and delay the present decree-holder, one creditor of his. Section 53 will apply only when the transfer is made with intent to defeat and delay the creditors of the transferor, and not one single known creditor and that one the executing decree-holder. Here too, I must note that the decree-holder did not mention that there was a transfer by the appellants husband to her, and that the transfer was made with intent to defeat and delay him, and that he was therefore entitled to avoid it. He simply proceeded against the properties as his judgment-debtor's. So, Section 53 cannot possibly come into operation.

6. Thirdly, Section 53 is intended to cover cases of transfers which are capable of being set up and defended, and not barred transfers, as here which are not pressed against the decree-holder long ago and cannot now be set up and defended as against him. Mr. Gopalaswami Aiyangar said that such a transfer will not be void, and my be valid, under the rulings, as between the appellant and her husband and his estate, though, by her not pressing her claim petition and allowing it to be dismissed, and by her not filing a claim suit within a year to get the dismissal set aside, she is barred by 'res judicata', and cannot urge her claims against this decree-holders. He urged that the transfer in favour of the appellant is only inoperative as against this decree-holder, and that too only to the extent necessary to satisfy his claim under this decree, and that it is valid and enforceable subject to the above right of this decree-holder. That may be so. We are not concerned with that question here. The decree-holder can proceed with the sale, free from the appellant's objection, to recover his decree dues, as held by the lower court. It follows that this C. M. A. has to be dismissed, and it is dismissed with costs.


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