1. This is an appeal from a decree of the Subordinate Judge reversing the decision of the Munsif in a suit purporting to have been brought under Section 283 of the Code of Civil Procedure. The facts are that the plaintiff had obtained a decree against the second defendant on the 19th December 1901. In execution of that decree, she attached the property of the judgment-debtor on the 11th September 1902 and the sale was fixed for the 18th November 1902. Twenty days prior to the attachment viz., on 20th August 1902, the defendant No. 2 executed a Kabala in favour of his brother, the first defendant, conveying all his right in the property to him for a nominal consideration of Rs. 1,25,000. On the 22nd November 1902, the first defendant, as purchaser, put in a claim under Section 278 of the Code which was allowed with costs on the 23rd December 1903. This suit was instituted on the 22nd December 1904 by the plaintiff under Section 283 of the Code claiming that the possession of the properties in suit by the defendant No. 2, or the colluding defendant, as he is called, might be declared not to have come to an end and that the properties might be declared to be liable to attachment and sale. She also asked for costs and for an order that the defendant No. 1 might not enforce the decree for costs in the claim case against the plaintiff and further that a decree might be passed for refund of the amount that might have been realized.
2. The Munsif decided the case in favour of the defendants and the plaintiff appealed. The lower appellate Court has decreed the plaintiff's suit and hence this appeal by the first defendant.
3. The findings of the lower appellate Court are not very satisfactory. There seems to have been some confusion of ideas in the mind of the learned Subordinate Judge. He has not distinguished the true issues in the case and he appears to have confounded the issue which he had to try in a suit under Section 283 of the Code with the issue which would arise in a suit under Section 53 of the Transfer of Property Act. For the appellant, it has been here argued that the finding of the Subordinate Judge must be taken to have reference solely to a conveyance by the second defendant to defraud creditors. It is argued that the suit must be taken to be a suit to set aside such a conveyance, that it could be brought only by one creditor on behalf of all the creditors of the second defendant, that if so brought, it would have to be brought in a Court of competent jurisdiction, that the Munsif would have no jurisdiction to try such a case and that it should have been brought in the Court of the Subordinate Judge. The true issue in a case brought under Section 283 of the Code is an issue purely of fact. The Court has to determine whether the property sought to be attached was at the date of the attachment in the possession of the judgment-debtor as his own property or was in the possession of some other person in trust for him. If that be found against the judgment-debtor, the plaintiff, the original decree-holder, is entitled to the declaration which is sought. The learned Subordinate Judge, after discussing the question of the conveyance from the point of view of its being a fraud against creditors, says: I would hold that the defendant No. 1 was privy to the fraud committed by the other defendant. So far as the plaintiff is concerned, the Kabala is void. I might, also, observe that the circumstances in the case indicated that the Kabala in question is a pure benami transaction.' If it were a pure benami transaction, the property should, of course, be taken to be still in the possession of the judgment-debtor as his own property, or, at any rate, in the possession of the transferee on his behalf and in trust for him. After that expression of opinion, the Subordinate Judge deals with the question of the inadequacy of consideration which appeal's to us to have some reference to the second paragraph of Section 53 of the Transfer of Property Act and to the presumption to be drawn from that as to the intention with which a fraudulent transfer is made. The Subordinate Judge then concludes by a finding that the facts which he has stated did not indicate that it was a bona fide deed of sale. We think that, though the finding of the Subordinate Judge on what should have been a simple question of fact is not very clear, still it must be taken to be a finding that the conveyance in question was a benami transaction and nothing more. The dates of the deed of transfer and the attachment, and the relationship of the two defendants would point to that finding being correct. We think that the suit is and must be regarded as one under Section 283 of the Code and the learned pleader for the appellant very properly admitted that, in such a suit, the other creditors of the judgment-debtor need not necessarily be added and that the proper parties are before the Court in the shape of the attaching creditor, the judgment-debtor and the alleged transferee. That being so, so far as the appeal turns on the main question, it must fail.
4. The Subordinate Judge has, however, given to the plaintiff a decree setting aside the order passed against her in the claim case which we have mentioned with a refund, of the costs. That he had clearly no power to do. A suit under Section 283, C.P.C., is not, in any sense, an appeal but only one for declaration of the plaintiff's right. The Court does, in such a suit, interfere with any order which it might have passed under Section 281 or Section 282. To that extent, the appeal must be allowed.
5. The result, therefore, is that that portion of the decree of the lower appellate Court allowing to the plaintiff the costs in the claim case is set aside and in other respects the said decree is affirmed. The costs of the parties will be in proportion to their respective success and failure, the appellant getting one-third of his costs and the respondent two-thirds. Costs in the lower Courts will also be in the same proportion.