SUBRAMANIA AIYAR Vs. ALVRRMMUTHIA CHETTIAR (DEAD)

JUDGEMENT

(1.) In this case the appellants (plaintiffs) are purchasers of the suit property from 2nd defendant by a sale-deed, Ex. A dated 20-6-1904. First defendant subsequent to this sale obtained a decree against 2nd defendant in S.C.S. 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 1st appeal that the sale was a fraudulent transaction intended to defeat or delay 2nd defendant s creditors though not a mere sham transaction.

(3.) It is now argued in secoud appeal that it is not open to 1st 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 obtains a decree setting it aside in proceedings suitably instituted for that purpose. Mr. A. Krishnaswami Aiyar relies on a recent ruling of this Court, reported in Palaniandi Chetti v. Appavu Chettiar and the Secoud 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.