BONAM VENKATASWAMI Vs. BONAM JAGGAYAMMA

JUDGEMENT

(1.) The plaintiff is the appellant who has filed the suit under Order 21, rule 63, Civil Procedure Code, being aggrieved by a claim order. The plaintiff obtained a decree in S.C.S. No. 387 of 1950 on the file of the District Munsif's Court at Narasapur, against defendants 2 to 5 and in execution of his decree attached the properties of the judgment-debtors. This decree was obtained on 8th May, 1950. The attachment in execution was ordered on 28th November, 1951. It is stated that the attachment was effected somewhere before 20th December, 1951. An objection petition was filed by the sister of the first judgment-debtor, being E.A. No. 101 of 1952. This objection petition was allowed after investigation and it is to set aside this order allowing the objection that the present suit was brought by the plaintiff.

(2.) The objection filed by the objector was that she had become the owner of the property attached under two sale deeds said to have been executed in her favour being Exhibit B-6 dated 15th November, 1951 and Exhibit B-8 dated 9th November, 1951, for valuable consideration and that the judgment-debtors had no subsisting interest in the property. The plaintiff challenged the alienations on the ground that they were sham transactions intended to defeat his claim. He also stated that the sales had been effected for grossly inadequate consideration. In the suit, a defence was raised that the suit as laid by the plaintiff was not maintainable. This was based upon the contention that the suit ought to have been laid as a representative suit under Order 1,rule 8, Civil Procedure Code, as it purported to be for a declaration that the sales were in fraud of creditors.

(3.) Evidence was led by the parties and on the evidence the trial Court gave its findings to the effect that the sales in favour of the objector-defendant 1 were fraudulently executed ; that one of the sales, viz., under Exhibit B-8 was supported only to the extent of Rs. 88-12-0. With regard to the maintainability of the suit, the trial Court held that the suit could not be regarded as one for the benefit of all the creditors as the plaintiff had only alleged that the sales had been effected with a view to defeat his claim and as such the case was not governed by section 53 of the Transfer of Property Act and there was no obligation on the plaintiff to file the suit as a represen tative suit. It decreed the suit.