MATHAN PHILIP Vs. ITHAK

JUDGEMENT

(1.) This second appeal is by the defendant in a suit to set aside an order refusing to remove an obstruction in execution and for recovery, which was dismissed by the trial court but allowed by the court below.

(2.) Kora Ulahannan started a chitty scheme in 1108 as foreman but it collapsed in or about 1110. There were five unprized subscribers to whom paid-up subscriptions were due, viz., D.W. 1, D.W. 2, plaintiff, Kurien and Kuriacko. It is the defendant's case that 3 meeting was held of these chitty creditors, the foreman and others on 9-6-1110 when measures were taken for the settlement of the debts by sales of the chitty security properties. In due course. Exts III, IV and V sale deeds were executed in favour of D.W. 1, Kurien and D.W. 7 respectively on 12-6-1110, and Ext II sale was executed in favour of the defendant with recitals on 15-6-1110 to pay off, the plaintiff and Kuriacko, all the documents being registered on 19-6-1110. The delay in executing Ext. II and in the registering of all the documents was accounted for by the fact that there was no time to prepare all the deeds on the first of the days, viz. 12-6-1110 and again by the failure of P.W. 7 to appear in time on 15-6-1110 for purpose of the registration. Whatever it be, the plaintiff whose claim was about to get barred on 15-6-1110 filed suit O. S. 1443 of 1110 late on 15-6-1110, and obtained Ext. D, ex parte decree on 30-10-1110. Following it up, he purchased certain of the chitty security properties in two instalments under Exts. B and H sale sannads. On the plaintiff seeking to take delivery of the property covered by Ext. II, the defendant obstructed successfully, Ext. A dated 23-2-1120 being the order allowing the obstruction. This suit was thereafter filed on 15-4-1120. The plaint averred that Ext. II and other documents were all executed on 19-6-1110 after the institution by plaintiff of his suit O. S. 1443 but were fraudulently antedated, that Ext. II was in fraud of creditors and also was affected by lis pendens and plaintiff as the owner under court sale was entitled to recover the property from defendant with mesne profits.

(3.) The defendant resisted the suit. He pleaded that the plaintiff had knowledge of the transactions inclusive of Ext. II and also was a consenting party thereto, having in fact taken a leading part in the meeting of the creditors, that plaintiff's suit was only by way of after-thought with a view to get more than what was recited in Ext. II. The defendant denied that Ext. II was a fraudulent transfer or was affected by lis pendens O. S. 1443 of 1110. He alleged that he had offered the plaintiff the amount of Rs. 130-23 Chs-4 Cash recited in Ext. II but without response from plaintiff. He was however willing to pay the same with interest even now.