1. In this case the appellants (plaintiffs) are purchasers of the suit property from second defendant by a sale-deed, Exhibit A, dated 20th June 1904. The first defendant, subsequent to this sale, obtained a decree against second defendant in Small Cause Suit No. 1960 of 1905, and in 1913 attached the suit properties in execution. Plaintiffs preferred a claim; on the dismissal of which they filed the present suit for declaration of their title, and for cancellation of the summary order on their claim.
2. The suit failed in both the lower Courts, the Subordinate Judge holding in first appeal that the sale was a fraudulent transaction intended to defeat or delay second defendant's creditors, though not a mere sham transaction.
3. It is now argued in second appeal that it is not open, to the first defendant to set up such a defence in the present suit; and that the sale must be held good against him unless and until he obtained a decree setting it aside in proceedings suitably instituted for that purpose. Mr. A. Krishnaswami Ayyar relies on a recent ruling of this Court, Palaniandi Chetti v. Appavu Chettiar : (1916)30MLJ565 , and the second appeal appears to have been specially ordered to be heard by us with a view to the correctness of this ruling being considered by a Bench of three Judges.
4. Speaking for myself I have carefully considered the judgment in the case referred to and the arguments of Mr. Seshachariyar who has endeavoured to show us that the decision is wrong. The facts are absolutely analogous to those in the present case. It is unnecessary for us in the present case to consider whether a suit by a creditor to avoid an alienation as infringing against Section 53 of the Transfer of Property Act must be brought in a representative capacity on behalf of the body of creditors, but apart from this I have no hesitation in concurring in the views expressed by Coutts Trotter and Seshagiri Ayyar, JJ., in that case. The only case quoted by Mr. Sesha Achariyar which has not been dealt with in their judgment and which appears to have any bearing on the question is a Calcutta case not reported in the regular series, Abdul Kadir v. Ali Mia (1912) 14 I.O. 715. With all respect I cannot agree with the decision. I do not find in it sufficient .authority for the proposition advanced by Mr. Sesha Achariyar that anything which can be made the basis of a suit can be pleaded as a bar in action: and I agree with my learned brother Seshagiri Ayyar, 3., in Palaniandi Chetti v. Appavu Chettiar : (1916)30MLJ565 that a sale such as the one we are considering must be held to continue in force until it is set aside in proceedings properly instituted for the purpose.
5. It follows that the decree of the lower Courts in the present suit should be set aside and plaintiffs be given a decree as sued for with costs throughout.
Seshagiri Ayyar, J.
6. I agree. The further arguments addressed to us by Mr. Sesha Achariyar have not convinced me that my view in Palaniandi Chetti v. Appavu Chettiar : (1916)30MLJ565 is wrong and that an attaching creditor as defendant can obtain a declaration that the sale by his judgment-debtor which he has not sued to set aside is in fraud of his and other claims against the common judgment-debtor and that on that ground the suit should be dismissed.
7. I agree.