RADHANATH SWAIN Vs. MADHUSUDAN SENAPATY

JUDGEMENT

(1.) THIS is a plaintiff's second appeal, against the reversing judgment dated 31 -8 -1951 of Sri B. N. Panda, Second Additional Subordinate Judge of Cuttack, arising out of a suit under Order 21, Rule 63, Civil P.C., the plaintiff being the judgment -creditor. Defendant 2 had executed a handnote in favour of the plaintiff on 24 -4 -1945 for a sum of Rs. 200/ - on the basis of which the plaintiff obtained a decree on 14 -7 -1947, the S.C.C. suit having been filed on 11 -1 -1947. The plaintiff started execution against the judgment -debtor (defendant 2) on 19 -1 -1948 and claimed for attachment of the disputed property. Defendant 1, who alone is contesting the suit, filed a petition under Order 21, Rule 58, Civil P.C., alleging that defendant 2 had executed a kabala in respect of the deputed land for Rs. 90/ - on 20 -7 -1946, and, as such, the property should be released for attachment. His petition under Order 21, Rule 58 having been allowed by the Executing Court, the present suit has been brought by the judgment -creditor for a declaration that the sale in favour of defendant 1 is purely a sham and nominal transaction on the basis of which no title passed in favour of defendant 1. He has further prayed that the summary order passed in the miscellaneous case under Order 21, Rule 58 be set aside.

(2.) DEFENDANT 1 took up the simple plea that the Kabala in his favour was genuine and for consideration and he was in possession of the suit property since the date of purchase.

(3.) IN respeet of the first point the learned lower appellate Court has solely relied upon a decision of Madras High Court in the case of - - 'Madina Bibi v. Ismail Durga Association', AIR 1940 Mad 789(A). That was also a suit under Order 21, Rule 63. The decree -holder instituted the suit for cancellation of the sale -deed simply on the ground that it was executed with intent to defeat and delay the creditors. It was held that the suit fell within the purview of Section 53, T.P. Act and was incompetent for want of Court's permission under Order 1, Rule 8, C.P. C. and that the provisions of Order 21, Rule 63 were not incompatible with Section 53, T.P. Act. On a perusal of the decision of their Lordships, we find that the plaint in the Madras case is entirely different from the plaint before us. There the allegation in the plaint was that the deed was executed with intent to defeat and delay the creditors and on that ground decree -holder wanted to set aside the sale. It appears also that in that suit it was really for the benefit of all the creditors. On a construction of the plaint, which of course or not produced in the judgment, their Lordships were of the view that it directly came within the purview of Section 53. In our case, however, on a perusal of the plaint, we are definitely of the view that this is a suit under Order 21, Rule 63 simpliciter. Here the plaintiff's main grievance is that the claim case filed by defendant 1 has been allowed and further the main ground on which he has brought this action is that the transaction in favour of defendant 1 is merely a nominal transaction under which no consideration passed and which was never meant to be acted upon, and it being purely a paper transaction, it is void 'ab initio' and conveys no title. Indeed in para. 3 of the plaint there is an allegation that it came into existence with the purpose of screening the property from the decrees of his creditors and in order to defraud them. But this comes simply as a motive for executing a nominal transaction. But looking to the substance of the plaint, as appearing from the entire plaint, read as a whole, it appears to he one under Order 21, Rule 63 alone which is clear particularly by reference to the prayer portion where the plaintiff makes it clear praying for two reliefs only that (i) defendant I did not acquire any right, title interest or possession in the properties described in the schedule on the basis of kabala dated 20 -7 -1946, and as such, the properties are liable to be sold in execution of the decree obtained against defendant 2 and (ii) the summary order dated 1 -3 -1949 in Misc. Case No. 116/29 of 1948 be set aside. There is no prayer for the transaction being declared as fraudulent as. against the creditors. Furthermore it is important to note that within the four corners of the plaint there is nothing to indicate that it is on behalf of the creditors in general. On the passing of an under under Order 21, Rule 58 against the decree -holder, he is under an obligation to bring a suit within one year of the order to set it aside, otherwise the order will be conclusive. This individual right of the decree -holder -creditor in not in the least affected by the provisions of Section 53. It can never be suggested for a moment that any decree -holder -creditor, who has been defeated in a claim case under Order 21, Rule 58, is bound to frame his suit in accordance with the provisions of Section 53, T.P. Act and take steps under Order 1, Rule 8, C. P. C. as his suit is a representative one. The decree -holder is absolutely free to enforce his right to bring a suit as against the summary order in the miscellaneous case by framing the suit in such a manner as to protect his own individual right of executing the decree against that property, without in the least minding the interests of other creditors