RAHIMTULLA Vs. RASULKHAN

JUDGEMENT

(1.) 1. This appeal arises out of a suit instituted by respondent 1 Rasulkhan for a declaration that the property in dispute was not liable to be attached and sold in execution of the decree obtained by the appellant Rahimtulla against Muhammad Khan, respondent 2. The plaintiff alleged that he had become the owner of the property under the deed of settlement dated 8th June 1907 executed in his favour by Muhammad Khan. The defendant resisted the suit on the ground that the deed of settlement was held to, be a fictitious and fraudulent transaction in Civil Suit No. 407 of 1909 at the instance of a creditor and that the present suit was barred by the rule of res judicata. There were other contentions raised in the suit which are not material for the disposal of this appeal. The Court of first instance held that the present suit was barred by reason of decision in civil Suit No. 407 of 1909 and dismissed the suit. The lower appellate Court took a different view and set aside the decree of dismissal and remanded the case for further trial. This appeal is preferred by Rahimtulla, defendant 1, against the order of remand.

(2.) IN Civil Suit No. 407 of 1909 one Dewaji, who was the sole creditor of Muhammad Khan, defendant 2 in the present case, alleged that the deed of settlement dated 8th June 1907 executed by Muhammad Khan in favour of Rasulkhan was a sham and fraudulent transfer which did not affect his right as a creditor. It must be noticed that in execution of his decree in Civil Suit No. 65 of 1907, Dewaji the creditor, had attached the property, but the attachment was raised on the intervention of Rasulkhan, who claimed exclusive right to it by virtue of the deed of settlement dated 8th June 1907. Dewaji had therefore to file the Suit No. 407 of 1909 as required by Order 21, Rule 63, Civil P. C. In this appeal it is a common ground that Dewaji was the only creditor of Muhammad Khan at the time when he filed his Suit No. 407 of 1909 and that Rahimtulla, defendant 1 in the present suit, had not yet become the creditor of Muhammad Khan. The answer to the questions raised here, namely, whether the present suit is barred by the decision in civil Suit No. 407 of 1909 depends upon whether Dewaji sued in his personal capacity or as representing the creditors. Whereas it is pressed for the respondent that Dewaji filed his suit professedly under Order 21, Rule 63, with a view to establish his right to attach and sell the property comprised in the deed of settlement it must be regarded as a personal suit, it is urged on behalf of the appellant that Dewaji's suit must be regarded as a representative suit, in terms of Section 53, T. P. Act, as if it had been filed in accordance with Order 1, Rule 8, Civil P. C. so as to render the decree passed in that suit operative as res judicata under Expl. 6, Section 11, Civil P. C. Under Section 53, as amended by Section 15, T. P. Amendment Act (20 of 1929) a suit instituted by a creditor to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, has to be instituted on behalf of or for the benefit of, all the creditors. Before this amendment there was a divergence of judicial opinion as to whether the suit brought by a creditor to avoid a transfer on the aforesaid ground was only a personal suit to be brought on behalf of all the creditors or whether it was competent for one creditor to institute such a suit. In Hakim Lal v. Mooshanhar Sahu (1907) 84 Cal 999 Burjorji Dorabji v. Dhunbai (1892) 16 Bom 1 and Natha v. Magenchand (1903) 27 Bom 322 it was held that the suit should be brought on behalf of all the creditors; whereas in Pokker v. Kunhamad AIR 1919 Mad 257 such a suit might be instituted by a single creditor.

(3.) THE admitted fact that Dewaji was the sole creditor is also a circumstance which must be taken into consideration. The nature of the suit would be clear from the kind of the decree that is passed in the suit and in my opinion the decree would be decisive of the question whether the suit was intended to be for the benefit of one creditor or the whole body of the creditors. The certified copies of the plaint or the pleadings are not filed but judging from the substance of the pleadings given in the judgment it, no doubt, appears that the plaintiff prayed for setting aside the deed of settlement on the ground that it was executed to defeat the creditors. Although the finding was that the transfer was intended to defeat the creditors generally the decree simply declared, that the deed of settlement was void as against the plaintiff in that case and that the eight annas share in mauza Pahur was liable to attachment and sale in execution of his decree. From the nature of the decree it is clear that both the plaintiff in that suit and the Court regarded the suit as being not of a representative character but only as one for the benefit of the plaintiff in that case. There were, no doubt, pleadings raising the larger issue between the transferor and the body of the creditors but that was not for the benefit of the creditors as a whole. The issue had to be raised because on the determination of that issue depended the ultimate result of the suit. The fact that Dewaji was the sole creditor and that he was content with merely a decree in his own favour and did not claim a decree in terms of Form No. 13. Appendix D to Schedule 1, Civil P. C., conclusively shows that he did not sue in a representative character. It is contended on the authority of Sonachalam Pillai v. Kumaravelu Chettiar AIR 1928 Mad 77, that Section 11, Expl. 6 is not controlled by Order 1, Rule 8. Expl. 6 is as follows: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.