MANILAL GIRDHAR PATEL Vs. NATHALAL MAHASUKHRAM VYAS

JUDGEMENT

(1.) The plaintiff sued to recover possession of the plaint house and Rs. 125 rent due under a registered lease dated the 18th of May 1915. The defendant filed a written statement contending that the sale-deed was effected through fraud in order to defraud the creditors, that the lease was inoperative and that the sale was declared to be ineffective in a miscellaneous application filed by the plaintiff.

(2.) It appears that after the sale-deed had been executed by the defendant in favour of the plaintiff, the property was attached by a creditor of the defendant. The plaintiff took proceedings under Order XXI for removing tie attachment. But in summary proceedings the Court came to the conclusion that the sale-deed was inoperative as it was effected to defraud the creditors. Plaintiff then filed Suit No. 86 of 11)1916 to set aside this order. That suit was withdrawn on the 15th. of August 1916, because defendant settled with the judgment-creditor and the attachment was withdrawn. This suit was filed on the 25th of May 1917.

(3.) The trial (Court dismissed the suit relying on the decision in the attachment proceedings against the plaintiff In first appeal the learned District Judge remanded the case for the trial of the issue whether the transfer by sale on the 10th of April conveyed any interest to the plaintiff and whether the effect of the lease of 18th May 191 5 created the relation of landlord and tenant between the parties. He disagreed with the finding of the lower Court that the order in miscellaneous proceedings 68 of 1915 was conclusive as against the plaintiff in favour of the present defendant, who was not a party to those proceedings. The lower Court found on those issues in the affirmative. Thereupon the District Judge reversed the decree of the lower Court and decreed the plaintiff s suit.