BHIMRAJ GANPAT PAWAR Vs. LAXMAN RAMCHANDRA SATBHAI

JUDGEMENT

(1.) The property in question was attached by the defendant in this suit in execution of a decree against one Bhau Dadaji. Then the plaintiff sought to raise the attachment on the ground that the property belonged to him. The application to raise the attachment was rejected. That order was not final. It remained for the unsuccessful party, if he chose, to take proceedings in a regular suit to have it decided to whom the property belonged. So &a the Judge in execution proceedings disallowed the present plaintiff s application, it lay upon him, if he wanted the execution proceedings to be stayed, to file a regular suit. The defendant claimed that the property belonged to his judgment-debtor on the ground that the transfers of his judgment-debtor were in fraud of the creditors, and so could be set aside at the instance of anybody defrauded under Section 53 of the Transfer of Property Act. The Judge considered that defence on the merits and decided in favour of the defendant.

(2.) It is now urged in Second Appeal that that defence could not be taken, and that the defendant was bound to file a separate suit to set aside the transfer to the plaintiff before the attachment proceedings could go on. That is a purely technical objection. When there are two claimants to the property which is being attached, namely, the party who seeks the assistance of the Court by execution, and the opposite party who claims that the property belongs to him, there are many ways of proceeding. The Court in execution may decide in favour of one side or the other, in which case the order will not be final, or it may direct one of the parties to file a suit to have the question decided. But however that may be, we have in this suit two opposite parties, the party to whom Bhau Dadaji transferred his property and the claimant in execution who set up a case that the transfer to the plaintiff was in fraud of creditors. That issue haw been fully dealt with by the learned Judge, and the evidence has been taken, and it has now been decided that those transfers wore in fraud of the creditors. There is no reason now in Second Appeal to accede to the contention of the appellant s pleader that all those transactions were irregular, and that in this suit it should have been decreed that the defendant be relegated to another suit to have the same question tried over again. The appeal is dismissed with costs. Heaton, J.

(3.) I agree. The defendant has established in this suit that he has a right to avoid the sale under which the plaintiff claims. It is said that though lie may have established this right, the Court cannot give effect to it, because the defendant was bound to bring a suit on his own account to have the sale-deed set aside, and that it was only after obtaining a decree in a suit of that kind that this defence can be made effective. I think that in this particular class of cases, whatever may be true of other cases, the law does intend that a defendant in the position of the present defendant should be allowed practically to avoid a sale if he establishes his right to avoid it. Arid this is so although he has not established his right to avoid it in a suit brought for that particular purpose but only by way of a defence in a suit in which he is a defendant. I therefore think that the appeal should be dismissed with costs.