THARU CHERU Vs. MARY

JUDGEMENT

(1.) The plaintiffs in O. S. No. 269 of 1959 on the file of the Munsiff's Court, Perumbavoor, are the appellants. The suit is one for declaration that Ex P 1 sale deed dated 5-1-1951 is in fraud of the creditors and is, therefore, liable to be cancelled. The Trial Court dismissed the suit holding that the suit is barred by limitation. This finding of the Trial Court was upheld by the Additional District Court, Parur, in A. S. No. 144 of 1964 filed by the defeated plaintiffs.

(2.) In the second appeal the main grounds raised are that the courts below are in error in holding that the suit is barred by limitation that being a suit under S.53 of the Transfer of Property Act, the proper provision applicable is Art.20, not Art.11 of the Limitation Act of 1908, that the suit is not barred by res judicata, and that the plaintiff even as a single creditor is entitled to bring a suit under S.53 of the Transfer of Property Act.

(3.) The facts of the case, briefly stated are as follows: The first plaintiff to whom the second defendant owed money, obtained a decree in O. S. No. 38 of 1951 on the file of the Munsiff of Trichur. In execution of that decree the plaintiff decree holder attached the plaint schedule property. The first defendant put in a claim stating that under Ext. P 1 sale deed she is the owner of the property and that the second defendant had absolutely no interest whatsoever in that item. This claim was upheld as per the order dated 24 11 1956. Thereafter the 1st plaintiff instituted O. S. 387 of 1957 on the file of the Munsiff's Court, Perumbavoor for setting aside the order on the claim petition. That suit was filed on 4-12-1957, one year and ten days after the passing of the order on the claim petition. That suit was dismissed on the ground that under Art.11 of the Limitation Act a suit under O.21 R.63 of the Code of Civil Procedure ought to have been filed within one year from the date of the order on the claim petition. The first plaintiff took up the matter in appeal, A. S. No. 241 of 1958 on the file of the Additional District Court, Parur, but without success.