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Karali Prosad Mukherji Vs. Jaminibala Devi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal344,76Ind.Cas.316
AppellantKarali Prosad Mukherji
RespondentJaminibala Devi
Excerpt:
civil procedure code (act v of 1908), section 47 - objection to attachment--objector claiming under fraudulent document--execution court, whether bound to set aside attachment. - .....judgment-creditor as to whether the attachment is valid are proceedings under section 47 of the civil procedure code and not under the provisions of order xxi, civil procedure code. now, the learned judge in the court below has held that the gift to the opposite party under which she claimed was a fraudulent deed intended to defeat creditors. he has thought, however, that under section 47 it was not possible that the deed of gift should be set aside or ignored and that, because an independent suit had not been brought for the purpose of obtaining a formally setting aside of that deed, he was of opinion that the attachment must be set aside and the objection in execution must be upheld. whether i look to the terms of section 33, transfer of property act, or those of section 47, civil......
Judgment:

1. In this case it appears that in a suit in which the opposite party was impleaded, a judgment was given for a sum of money against the other defendants. Execution was taken out under that judgment and. property was attached to which the opposite party made a claim. She laid claim to that property as her own by virtue of a gift made to her by her husband who had been very much indebted. This Court has already held that the proceedings between the opposite party and the judgment-creditor as to whether the attachment is valid are proceedings under Section 47 of the Civil Procedure Code and not under the provisions of Order XXI, Civil Procedure Code. Now, the learned Judge in the Court below has held that the gift to the opposite party under which she claimed was a fraudulent deed intended to defeat creditors. He has thought, however, that under Section 47 it was not possible that the deed of gift should be set aside or ignored and that, because an independent suit had not been brought for the purpose of obtaining a formally setting aside of that deed, he was of opinion that the attachment must be set aside and the objection in execution must be upheld. Whether I look to the terms of Section 33, Transfer of Property Act, or those of Section 47, Civil. Procedure Code, I have failed to find any sufficient reason for that ruling. It appears to me that Section 47, Civil Procedure Code, would be very much narrowed if it were laid down that people claiming under a purely colourable, covinous and fraudulent document are not to have their claim set aside or ignored when proceedings are taken in execution. For this reason; amd as there is no opposition to the Rule, the Rule must be made absolute. The result will be that the judgment of the District. Judge will be set aside and that of the First Court restored. The petitioner is entitled to the Costs of this Rule. I assess the hearing fee at one gold mohur.


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