SACHITANAND TEWARI Vs. RADHAPAT PATHAK

JUDGEMENT

(1.) This is an appeal by one of the objectors arising out of an execution proceeding. It appears that a certain amount of money was due to the plaintiff decree-holder from defendant 1 on a sarkhat. Subsequently the debtor executed a deed of gift of his immovable property in favour of defendants 2 to 7. After this, in October 1924, the creditor brought a suit to recover the amount due on the sarkhat, in which he impleaded not only his original debtor but all the donees also. As there was no charge on any property he of course could not claim a decree for sale or any other consequential relief as regards any immovable property of the debtor. But the plaintiff in his plaint stated that defendant 1 had made a gift of all his property in favour of the other defendants on whom the debt was binding and who had therefore been impleaded. The relief which he actually claimed was that his claim should be decreed against the "defendant". All the defendants were absent and the Court held that the plaintiff had only claimed relief against defendant 1 and not the other defendants. It accordingly decreed the claim for money against defendant 1, but ordered that "the other defendants should be exempted." In the decree which was prepared these exempted persons were shown in the array of the defendants, but the order exempting them was incorporated in this decree. Neither party appealed and that decree became final.

(2.) The plaintiff proceeded to execute the decree by attaching the gifted property. It was to this attachment that the objection was raised by the donees. They were mot with the reply that the transfer in their favour was a gratuitous transfer with intent to defeat, or delay the creditor and was accordingly voidable at his option under Section 53, T.P. Act. The execution Court held that the objection was well founded and allowed it. The lower appellate Court has come to the contrary conclusion holding that the decree-holder was not debarred from raising the question that the legal gift was voidable under Section 53, T.P. Act. One of the objectors has appealed to this Court.

(3.) The learned advocate for the appellant has first contended that the objection fell under Order 21, Rule 58, Civil P.C., and not under Section 47, and that, therefore, no appeal lay to the lower appellate Court. The contention is that the order of the original Court exempting the defendants amounted to directing that their names should be struck off from the record, and that accordingly they ceased to be parties to the suit and must be treated as strangers who were objecting to the attachment. If this contention were correct, the appellate Court would have no jurisdiction to hear the appeal. In our opinion, however, this contention cannot prevail. No doubt the word "exempted" used by the original Court was an ambiguous word and its use was unfortunate. The Court should have been more exact in its language and should have either said that the suit was dismissed against the defendants or should have ordered that they should be exempted from the suit and their names should be struck off from the record. It was not a case where the plaintiff himself had requested the Court to exempt these defendants. The Court itself when it came to deliver judgment was of opinion that as no relief was claimed against them the suit could not be decreed against them.