SUBRAMANIA AYYAR Vs. ALVRRMMUTHIA CHETTIAR

JUDGEMENT

(1.) In this case the appellants (plaintiffs) are purchasers of the suit property from second defendant by a sale-deed, Exhibit A, dated 20th June 1904. The first defendant, subsequent to this sale, obtained a decree against second defendant in Small Cause Suit No. 1960 of 1905, and in 1913 attached the suit properties in execution. Plaintiffs preferred a claim; on the dismissal of which they filed the present suit for declaration of their title, and for cancellation of the summary order on their claim.

(2.) The suit failed in both the lower Courts, the Subordinate Judge holding in first appeal that the sale was a fraudulent transaction intended to defeat or delay second defendant s creditors, though not a mere sham transaction.

(3.) It is now argued in second appeal that it is not open, to the first defendant to set up such a defence in the present suit; and that the sale must be held good against him unless and until he obtained a decree setting it aside in proceedings suitably instituted for that purpose. Mr. A. Krishnaswami Ayyar relies on a recent ruling of this Court, Palaniandi Chetti v. Appavu Chettiar , and the second appeal appears to have been specially ordered to be heard by us with a view to the correctness of this ruling being considered by a Bench of three Judges.