M.C. Ghose, J.
1. This is an appeal by defendants 1 to 3 in a suit for declaration that the lands in suit are saleable and attachable in execution of plaintiff's decree against the judgment-debtor, defendant 4 in the suit. The facts in short are that defendant 4's husband Annanda Prosad Ghose borrowed Rs. 76, from the plaintiff by a promissory note. The plaintiff brought a suit in 1929 on the promissory note against defendant 4 as widow and heir of the said Ananda. The suit was decreed on the 24th August 1929. The plaintiff in execution of the decree attached the lands in suit. The defendants 1 to 3 thereupon preferred a claim alleging that they had purchased the land on the 8th June 1929 and been in possession since the date, that the claim was allowed by the Court. Thereupon, the present suit was instituted. The plaintiff alleged in the plaint that the kobala by which the defendants purchased the lands from defendant 4 was a collusive and a benami document without consideration and was created in order to defraud the plaintiff. The trial Court found on the evidence that the appellants had purchased the lands for good consideration from defendant 4 and they are in possession since the purchase, and the Kobala was not a Benami transaction as alleged by the plaintiff. Thereupon, the trial Court dismissed the suit.
2. In appeal, the learned Subordinate Judge held that the appellants were not benamidars of defendant 4, but that they had purchased the land for consideration and that they are in possession since the date of their purchase. The Court, however, held that defendant 4 sold the lands to the appellants in order to defraud the plaintiff and defeat his claim in the suit, and therefore, though the kobala was for consideration it is hit by Section 53, T. P. Act, and the Court thereupon, passed a decree that if within the time stated, defendants 1 to 3 paid the decretal amount to the plaintiff, the suit would stand dismissed but in default of such payment the plaintiff would be entitled to attach and sell the plaint lands for realization of the decree. In appeal it is urged that the case of the plaintiff was that the document was a benami transaction without consideration and on that basis the parties went to trial. The case under Section 53, T. P. Act, was not made out in the plaint. Even under Section 53, as it stood before the amendment of 1929 it was held that a suit must be properly constituted under Section 53. If it was properly constituted there might be a defence to such a proceeding. See the case in Chutterput Singh v. Maharaj Bahadur (1905) 32 Cal 198. The amended Section 53, which came into force in 1929 applies to the present suit which was instituted in January 1931. It is laid down that a suit instituted by a creditor to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditor of transferor, shall be instituted for the benefit of all the creditors, that is to say, a suit must be instituted according to the provisions of Order 1, Rule 8. The present suit was not instituted according to the law as laid down in Section 53. The plaintiff, therefore, is not entitled to claim the benefit of Section 53. It would be evidently unjust to give him a decree under Section 53, since he did not make such a case in the plaint and did not give the defendant adequate opportunity to meet his plea. It was urged by the learned advocate for the respondent that the plaintiff might be allowed to amend the plaint so as to comply with the provisions of Order 1 Rule 8; if such amendment be allowed now it would be beyond time of limitation. The appeal is allowed, the decree of the Court of appeal below is set aside and that of the Court of first instance restored with costs.