PHOOLAN DEVI Vs. SURENDRA PRAKASH

JUDGEMENT

(1.) THIS is a defendant's Second Appeal in a suit filed by plaintiff-respondent No. 1 under Order 21, Rule 63 C. P. C.

(2.) BRIEFLY stated, the facts which emerge are that the plaintiff-respondent had filed a suit for the recovery of various loans advanced to respondent No. 2 during 1963 to 1966. Suit No. 17 of 1969 was filed by the plaintiff respondent for the recovery of the amount due under the said loans which was decreed. In execution of that decree, the disputed property was attached on 2-2-1970. This prompted the appellant, who is the wife of respondent No. 2, to file an objection under Order 21, Rule 58 C. P. C. contending that her husband (the judgment debtor) had nothing to do with the property and she was the owner in possession thereof in her own right. This objection was allowed in July 1971 and thereafter the plaintiff-respondent instituted Suit No. 21 of 1971 purporting to be under Order 21, Rule 63 C. P. C. as it then was.

(3.) THE only question of law which survives for decision by this Court is whether the suit of the plaintiff was not maintainable for his failure to take steps under Order 1, Rule 8 C. P. C. It is contended that this suit is basically one under Section 53 of the Transfer of Property Act which required that the same ought to be filed for the benefit of the entire body of creditors. On this premise, it is further urged that since there were other creditors also, the suit by plaintiff alone was bad. Reliance was placed by the appellant on a Supreme Court decision in Abdul Shukoor Saheb v. Arji Papa Rao, AIR 1963 SC 1150 while the respondents seek to retrieve the situation by relying on a single Judge decision of this Court in Roshan Lal v. Ramji Lal, 1964 AllLJ 1079 in which the above Supreme Court decision was not noticed. Before considering these cases it would be proper to see what Sec. 53 provides. Section 53 of the Transfer of Property Act as amended in 1929, reads as under : "53 (1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. (2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made. "