RAMCHANDRA KRISHNAJI CHANDOLE Vs. VITHU GOVIND PANHALE

JUDGEMENT

(1.) THIS is an appeal from an order of the Assistant Judge of Sholapur which raises a question of law. The material facts are that on-June 23, 1924, one Krishnaji, the father of the present appellants, obtained a mortgage instalment decree, and his successors are still trying to enforce it. In 1926, and again in 1927, darkhasts were filed by Krishnaji or his heirs, which would have the effect of keeping the decree alive. On January 23, 1930, the guardian of the present appellants, who are the heirs of Krishnaji, assigned the decree to one Bawadhankar by deed, and in 1930, and again in 1934, the assignee filed darkhasts, which, if effective, would again have the effect of keeping the decree alive. In 1932, a creditor of Krishnaji filed a suit against the present appellants and their assignee for a declaration that the assignment to Bawadhankar was void against creditors, and on June 30, 1934, an order was made in favour of the plaintiff. The exact terms of the order I will refer to presently. Thereafter the present appellants filed this darkhast on the basis that the assignment to Bawadhankar had been set aside and therefore the right to execute the decree had re-vested in them. The trial Court directed the darkhast to proceed, but in appeal the learned Judge reversed that finding and declared that the appellants had no right to institute the present execution proceedings. He took the view, that although Section 53 of the Transfer of Property Act refers only to immoveable property, and the Court has to deal in this case with a decree, still a suit to set aside an assignment of a decree must be dealt with by Courts on principles analogous to those governing suits under Section 53, and that an assignment void under Section 53 is only void as against the creditors of the assignor, and is effective as between the assignor and the assignee. He held therefore that the assignment was still effective as against the ass gnors and therefore they could not enforce the decree, the subject-matter of the assignment.

(2.) THE question must really turn on the meaning and effect of the order made by the Court in the suit to set aside the assignment. Now, there are, at any rate, two possible forms of order which may be made in a suit to set aside a settlement brought by creditors under Section 53 of the Transfer of Property Act. THE forms will be found in Seton's Judgments and Orders, 7th edn., pp. 2280 and 2281. THE first form provides for a declaration that the indenture of settlement is fraudulent and void as against creditors, and an order that the defendant do deliver up the indenture to the plaintiff to be cancelled. Under an order in that form the impeached document is cancelled. THE other form provides for a declaration that the indenture of settlement is void as against the plaintiff and other creditors of the defendant, and an order that the trustees of the settlement do join and concur in all acts and things necessary for making the property comprised in the said indenture available for satisfying the claims of the plaintiff and of other creditors of the settlor, as shall be directed by the Judge at Chamber in case the parties differ. Under a decree in that form the settlement is not cancelled; it remains in force and the rights of the creditors are enforced under it.

(3.) I agree.