MOHAMMAD ASGHAR ALI Vs. SHMOHAMMAD ISHAQ ALI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought for a declaration that the property described in the plaint was attachable and saleable in execution of decree No. 252 of 1928 and that the plaintiff was entitled to get rateable distribution out of the sale proceeds under other decrees in his favour. A declaration was prayed for that the two sale deeds of 22 February, 1934 executed by Hamid Ali in favour of Asgar Ali and others were ineffectual and void as far as the decrees in favour of the plaintiff were concerned. The suit was resisted by the defendant inter alia on the ground that the suit as framed was not maintainable inasmuch as it was not a representative suit on behalf of or for the benefit of all the creditors. The trial Court dismissed the suit on the preliminary ground that the suit as framed was not maintainable. The lower Appellate Court however took a contrary view and held that this was a suit under Order 21, Rule 63, Civil P.C., and the reliefs claimed could be given in the present suit. Learned counsel for the appellant has reiterated the objection taken on behalf of his client in the Courts below. It is contended that if the suit were limited to the relief that the sale deeds in question were fictitious the plaintiff alone could bring the suit on his own behalf. On the other hand if the plaintiff pleaded that the sale deed was fraudulent and was executed with the intention to defeat and delay the creditors it would come within the purview of Section 53, T.P. Act, and a representative suit would have to be instituted. It is contended that on the allegations in the plaint the present suit comes within the purview of Section 53, T.P. Act, and was rightly dismissed by the trial Court.

(2.) In the body of the plaint the plaintiff has set out the facts on which the suit is founded. In para. 6 it is stated that the plaintiff had warned defendants 1-8 (vendees) that the defendant 9 (vendor) was liable under several decrees in favour of the plaintiff; that the defendants (vendees) dishonestly and with full knowledge of facts obtained two sale deeds in their favour. There is no mention whatsoever in the body of the judgment that the transfers are null and void as against other creditors. Rule 63, Order 21 of the Code provides that: Where a claim or an objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute....

(3.) This suit, as the plaint discloses, is instituted merely to establish the right of the plaintiff and has no concern whatsoever with the possible claims which other creditors may have against the judgment-debtor. I fail to see why the suit as framed is not maintainable. In my judgment it was not necessary for the plaintiff on the facts alleged to bring a representative suit on behalf of or for the benefit of all the creditors. Learned counsel has referred to the case in Chidambaram Chettyar V/s. R.M.A.R.S. Firm (1934) 21 AIR Rang 302 in which Dunkley J. held: When a suit is brought under the provisions of Order 21, Rule 63 by an attaching creditor to establish his right to attach and bring to sale certain property and in order to succeed it is necessary to avoid a transfer of property on the ground that the transfer has been made with intent to defeat or delay the creditors of the transferor the suit must be brought in the form of a representative suit on behalf of or for the benefit of all the creditors of the transferor as provided for in Section 53, T.P. Act.