IN RE: DECCAN COMMERCIAL BANK, LTD (IN LIQUIDATION); AGA MAHOMED KHALEEL SHIRODI (SINCE DECEASED) CYRIL GILL JOINT OFFICIAL LIQUIDATORS Vs. MOHAMED NAWAZ KHAN

JUDGEMENT

(1.) This is an appeal against the order of the Master passed in execution. The applicants are the Official Liquidators of the Deccan Commercial Bank, Ltd. One Khan Sahib Md. Munir Khan Sahib Bahadur was a contributory of this company. He was placed on the list of contributories and an order was obtained against him for payment of the amount due from him in that respect. These execution proceedings are by the Official Liquidators to execute that order. This contributory died in January 1945 at which time he was on the list of contributories and the order for payment had been obtained against him. His son one Md. Nawaz Khan was brought on the record of the execution proceedings as his legal representative. Execution was sought by attachment of certain shares by way of an order prohibiting the Secretary of the Egmore Benefit Fund, Flowers Road, Egmore, Madras, from paying Mohamed Nawaz Khan the amount of shares standing in the name of his deceased father Khan Sahib Md. Munir Khan Sahib Bahadur, and it is stated in the execution petition that these shares " have recently been transferred and now stand in the name of the said Md. Nawaz Khan." But it is admitted before me and it was so stated by the Master in his order that the shares were in fact transferred by the deceased contributory to his son, the present respondent, on the 21 July, 1941, i.e., over three years before his death.

(2.) The respondent filed objection to the application for execution on the ground that he was the registered owner of the shares and was entitled thereto on his own account. It is admitted that the shares are so registered and that he, the respondent, is in possession of the certificates. The Master has found that the respondent " is in actual possession of these shares." On this finding he rejected the application for attachment.

(3.) Objection is taken to this decision of the Master on the ground that he should have heard and considered evidence in support of the liquidators allegation that the transfer by the deceased contributory to the present respondent was a fraudulent preference. Reliance has been placed on the case of Ramaswami Chettiar V/s. Mallappa Reddiar . The Master has taken the view that this case has no application in the circumstances of this case and I agree with him. In that case it was held that an attaching creditor defendant in a claim suit under Order 21, Rule 63 may properly raise a defence that the transfer to the plaintiff was void as being in fraud of creditors. That furnishes no authority for the proposition that a similar plea may be raised by a petitioning creditor in the execution proceedings.