1. On 18th July 1904, one Ramaswami gifted the suit house to his wife. On 8th February 1905, by Ex. D-1, the wife sold the property to the appellant, who leased it back to Ramaswami. In O.S. No. 1094 of 1905 on the file of the District Munsif of Erode, a creditor of Ramaswami brought a suit Under Order 21, Rule 68 against the claim order holding that the gift by Ramaswami and the sale by his wife were true. That suit was dismissed, as was the appeal to the District Court. Later on, respondent 1 sought to proceed against the property. On the claim petitions, it was held as before that the gift and sale were true. Consequently, the defeated creditor, who is respondent 1, filed O.S. No. 115 of 1942 to establish his right to proceed in execution against that property; and he contended therein that the gift and the sale were nominal. At the same time, the appellant filed O.S. No. 116 of 1942 against the sons of Ramaswami, who has since died, to recover the property. These suits were tried together; and it was held that the gift and sale were nominal transactions. Appeals by the appellant to the Subordinate Judge of Coimbatore were unsuccessful.
2. The principal point argued in appeal is with regard to the effect of the earlier decisions in O.S. No. 1094 of 1905 on the file of the District Munsif of Erode and in the appeal therefrom, O.S. No. 43 of 1907, on the present litigation. It is contended by the appellant that although O.S. No. 1094 of 1905 was apparently brought by the creditor for himself alone, yet he must be deemed to have been litigating on behalf of the general body of creditors and that therefore under Expln. 6 to Section 11, Civil P.C., the earlier decree would be res judicata in the present litigation. The lower Court discussed this question briefly and very generally and came to the conclusion that the earlier decree was not res judicata, because the parties were not the same. It did not consider the effect of Expln. 6 to Section 11, Civil P.C. It is very clear that the creditor in O.S. No. 1094 of 1905 did not intend to litigate on behalf of the general body of creditors and did not in fact do so. He was merely concerned with having it declared that the gift and sale were nominal, in order that he might proceed against the property. He was not concerned with the other creditors. A somewhat similar question came up for consideration in Jagaunath v. Ganesh 18 All. 413 and Pethuraju Kone v. Muthuswami Iyer A.I.R. 1942 Mad. 128 where it was held that when a creditor merely resists a claim by a claimant, his resistance in the summary proceedings cannot be deemed to be on behalf of all the creditors. The learned advocate for the appellant however relies on brief passages in the two judgments. In the Allahabad case it was said:
We say nothing as to what might be the effect of the order Under Section 280, Section 281 or Section 282 (Order 21, Rules 60, 61 and 62) in favour of one decree-holder so far as the other decree-holders were concerned who had obtained attachment.
3. King J. in Pethuraju Kone v. Muthuswami Iyer A.I.R. 1942 Mad. 128 said:
Now, of course, a suit by a creditor to set aside an adverse claim may well in certain circumstances be in essence a suit Under Section 53, T.P. Act.
4. The learned Judge was considering Section 53 as it now stands after the recent amendment. Under the old Section 53 there was no obligation to file a suit in a representative character. A case that has been referred to by both sides is Kumaravelu Chettiar v. Ramaswami Iyer a decision of the Privy Council. In that case, a suit purported to be Under Order 1, Rule 8; but the terms of that Order were not properly complied with; e.g., notice was not sent; nor was permission of the Court obtained. This High Court held that despite these defects the decision in that suit did operate as res judicata in a subsequent litigation between a person having the same right and the same defendant. Their Lordships disagreed; but reading their judgment as a whole, it is clear that they avoided discussion of the general question whether a decision in a suit not filed as a representative suit would operate as res judicata against persons who were not parties to the prior litigation. Their Lordships confined themselves to the question directly before them, namely, whether in a suit that purported to be a representative one, but in which the provisions of Order 1, Rule 8 were not properly complied with, the decision would nevertheless operate as res judicata in a subsequent litigation by virtue of Expln. 6 to Section 11, Civil P.C. Their Lordships held that it would not.
5. I do not consider that the present suit was one with regard to a right shared by others that would make Expln. 6 to Section 11, Civil P.C., applicable. In a suit Under Section 53, T.P. Act, a creditor does not litigate with regard to a right, but, alleging that a certain alienation was in fraud of creditors, prays that the Court will declare that as far as he is concerned the transaction should be declared to be void. Mr. Srinivasagopalachari has referred to Gurushiddappa Gurubasappa v. Gurushiddappa Chenaviruppa : AIR1937Bom238 as a case resembling in important respects the case now under consideration. There, the learned Judge held that the parties to the earlier litigation were the same as the parties in the later litigation. A suit was brought for redemption by a mortgagor against the Hubli Pinjrapole Samstha; and the President was imp leaded as the representative of the Samstha. The Samstha raised an objection that the President could not represent the Samstha, but that objection was afterwards withdrawn and the suit proceeded on the basis that it was one properly framed against the proper defendant. The later suit was for the same relief by the same plaintiff against the same Samstha, but alleging that in the earlier suit the Samstha was not properly represented. The second suit was framed as one Under Order 1, Rule 8. The learned Judge held, firstly, that the parties to the earlier litigation proceeded on the assumption that the Samstha was properly represented and that the plaintiff was therefore estopped from contending in the second suit that the Samstha was not properly represented. But the learned Judge went further and said that even if there was any technical defect in the former suit, it was covered by Expln. 6 to Section 11, Civil P.C. It seems to me that the circumstances there were very different from what they are here. This is a case directly governed by Pethuraju Kone v. Muthuswami Iyer A.I.R. 1942 Mad. 128. When the present appellant put forward a claim in the claim application, he was clearly doing so on behalf of himself alone and in no sense of the word could he be said to have been litigating with regard to a right which he shared with others.
6. It is further contended that even if the earlier decision did not operate as res judicata,1 yet the sons of Ramaswami, defendants 2 to 4, should not be allowed to enjoy what may be left after defendant 5 has realized his decree amount, and that they, at least, are bound by the earlier action. They cannot, however, be bound by the earlier decision unless that decision operates as res judicata. I have held that it does not. Moreover, the appellant and Ramaswami were co-defendants in the prior litigation and their interests were not opposed. It is said that as Ramaswami was in possession of the land under a lease and that in pursuance of the lease granted to Ramaswami defendants 2 to 4 are in possession, they are estopped from questioning the title of the appellant. The question of title was properly raised in the suit; and the Court has found that the sale was a nominal one, from which it would follow that the back to Ramaswami was also nominal; so that the possession of Ramaswami was not under the lease as a tenant of the appellant, hut in his own right as the owner of the land. For the same reason defendants 2 to 4 are also in possession as the owners of the land. Both appeals are dismissed with the costs of respondent 1 in S.A. No. 1272 of 1943 and of the other respondents in S.A. No. 1278 of 1943.