GURAJADA VIJAYA LAKSHMAMMA Vs. YARLAGADDA PADMANABHAN

JUDGEMENT

(1.) This Civil Revision Petition is filed against the findings recorded by the learned Subordinate Judge of Masulipatam on additional Issues 4 and 5 in O. S. No. 61 of 1950 on his file.( The plaintiff-decree-holder sought to attach the properties of the first defendant in O. S. No. 61 of 1950 (Petitioner herein) as belonging to his judgment - debtor who is the second defendant in that suit, in execution of the decree in O. S. No. 215 of 1945 (District Munsifs Court of Gudivada). The petitioner herein filed a claim petition (E. A. No. 462 of 1949) under O. 21, R. 58, Civil P. C. and her claim was allowed. The plaintiff-decree, holder consequently filed O. S. No. 61 of 1950 seeking to set aside the Order made on the claim petition. One of the pleas raised in that suit by the petitioner herein was that the debt due to the plaintiff was a bogus one and that the decree obtained by him was vitiated by fraud and collusion. On that pleading, additional issues 4 and collusion. On that pleading, additional issues 4 and 5 were raised. The learned Subordinate Judge held that in a suit filed under O. 21, R. 63, Civil P. C. it is not open to the defendant to attack the decree or the debt on which it is based. The present revision petition is, therefore, filed by the first defendant in O. S. No. 61 of 1950, Sub-Court. Masulipatam.

(2.) From the facts stated above, it is clear that the claim preferred by the petitioner herein was upheld by the executing Court, and the decree - holder had consequently to file the suit under O. 21 R. 63, Civil P. C. In such a suit, he has to establish that the properties sought to be attached belong to the judgment-debtor and it is certainly open to the defendant to raise all defence to non-suit the plaintiff. If the defendant is in a position to prove that the plaintiff is not at all a creditor or that the decree obtained by him was one obtained by fraud or collusion, the suit will have to fail. I am not, however, concerned with the question whether the suit having been filed in a representative capacity, it is not open to the other creditors to continue the suit or not.

(3.) The nature and scope of a suit under O. 21, R. 63, Civil P. C., has been well set out by George Rankin J. in -- Najimunnessa Bibi v. Nacharaddin Sardar, AIR 1924 Cal 744 at p. 748 (A), and is in the following terms :