SM RAMKALI KUER Vs. KALI PRASAD

JUDGEMENT

(1.) This appeal arises out of a decision of the learned Subordinate Judge of Gaya, dated 11-11-1942 by which he has decreed the suit instituted by the respondents for a declaration that the properties in suit are liable to be attached in execution of their decrees. The appellants before us are the daughters of one Raghunath Sahay, defendants 1(a) to 1(c), and a deity, defendant 1(d).

(2.) It is necessary to give the dates of certain transactions and events in order to appreciate why we are forced to set aside the decree of the learned Subordinate Judge on a preliminary point only without going into the merits of the case.

(3.) On 3-S-1935, Kali Prasad, plaintiff 1 in the action, obtained a decree for about Rs. 5900 against Raghunath Sahay, who was made defendant 1. The decree was put into execution in 1935 and an attachment was effected amongst other properties of the property apparently standing in the name of Ramlachhan Kuer, the wife of the judgment-debtor. She put forward a claim in the execution Court based upon the ground that her husband executed a deed of gift on 9-5-1932 in her favour of some of the properties sought to be sold and that on 16.6-1933, a registered sale deed had been executed in her favour by her husband of some other properties which the decree-holder was seeking to sell. The claim of the lady was allowed on 30-11-1935. Accordingly on 8-10-1936, a suit giving rise to this appeal was instituted by the defeated decree-holder Kali Prasad under the provisions of Order 21, Rule 63, Civil P.C. In the plaint he alleged that he was one of the creditors of defendant 1 and there were several other creditors so that defendant 1 had become heavily indebted and that it was only in order to avoid payment of the dues to the plaintiff and to other creditors that defendant 1 had executed a farzi and got up deed of gift on 9-5-1932 and a sale deed on 16-6- 1933. The plaintiff gave details of the debts due to the various creditors and urged that the property valued at Rs. 84,000, has been stated in the deed of gift to be valued only at Rs. 15,000, and that both the documents were executed out of mala fide intention and that they were not intended to be acted upon and were not acted upon; but on the other hand the properties covered by the deeds were all along in possession of defendant 1 and defendant 2 had never been in possession thereof. Accordingly the relief sought for was that the Court may set aside the order dated 30-11-1935, and hold that the deed of gift and the sale deed were fraudulent, null and void and inoperative against the plaintiff and other creditors of defendant 1, so that the plaintiff and the other creditors may get the properties covered by those deeds sold. He also stated in the plaint that should any of the other creditors of defendant 1 desire to join in the suit, they may be made co- plaintiffs. Four other persons were impleaded as coplaintiffs 2 to 5 after the publication of a notice under order 1, Rule 8, Civil P.C., but after the expiry of one year from the date of the order allowing the claim case. Plaintiff 1, however, was rightly treated as having instituted the suit in a representative capacity so that the mere fact that the other co-plaintiffs came on the record after the period of limitation has become immaterial.