Pethuraju Kone vs Thenirkulam Muthuswami Aiyar and Others

King, J.—This appeal arises out of a suit under Order 21, Rule 63 to vacate an order on a claim petition. Plaintiff is the attaching creditor:

defendant 1 is the claimant; defendants 2 to 4 are the judgment-debtors. Defendant l''s title is based upon two sale-deeds, Ex. IV by defendants 2

to 4 to one Muthukrishna Aiyar in 1927 and Ex. I by Muthukrishna Aiyar to himself in 1932. It has been held as a question of fact that defendant 1

was a bona fide purchaser for consideration under Ex. I and plaintiff''s , suit has been dismissed. In this appeal plaintiff contends that the issue

between himself and defendant 1 is res judicata in his favour.

This contention is based upon the following facts. One T. V. Krishna Aiyar another creditor of defendants 2 to 4 attached in execution of his

decree against them the crops standing on the land now in dispute. Muthukrishna Aiyar claimed under Ex. IV to be the owner of the land and the

crops. His claim was dismissed. Against that order of dismissal he filed no suit. Muthukrishna Aiyar was, of course, the predecessor-in-title of

defendant 1, and it is now argued that plaintiff represents the interests of defendants 2 to 4 What therefore was res judicata between Muthukrishna

Aiyar and defendants 2 to 4 is res judicata between defendant 1 and plaintiff and defendant 1 cannot claim title to the subject-matter of this suit.

The argument, as thus put forward, was not considered by the learned Subordinate Judge, who has dismissed the plea of res judicata, on the

ground that the subject-matter of the claim order i.e., the crops on the land is not identical with the subject-matter of the present suit i.e., the land

itself. In view of the decision in Ashna Bibi v. Awaljadi Bibi I.L.R.(1916) Cal. 698 I think this reasoning is sound, and of itself sufficient for

rejecting the plaintiff''s plea, but as the general question of the status of the plaintiff in his relationship to defendants 2 to 4 has also been argued I

proceed briefly to discuss it.

The statement that plaintiff is now the representative of defendants 2 to 4 is a legal fiction, and though it may derive support from some

observations in Venkatachariar Vs. South Indian Bank and Another, , that is a case in which in fact the judgment-debtors had unsuccessfully

resisted the future claimant and I find myself quite unable to act in the circumstances of this case, where defendants 2 to 4 are never shown to have

pleaded anything upon a legal fiction which it is universally known, is almost always in direct conflict with the actual facts. In the strict sense of the

word a decree-holder can never, in a suit of this kind, be the representative of his judgment-debtors. In so far as the judgment-debtors take any

interest in the case at all they have their own point of view to put forward which almost invariably is in opposition to that of the decree-holder. As is

stated very clearly in Gnanambal Ammal Vs. Parvathi alias Venkalatchmi Ammal, , the attachment by a decree-holder is not effected by him as the

privy or representative of the judgment-debtors, but ''by virtue of a right inherent in him to attach what was really their property at the date of the

attachment''. I have not been shown any authority in which this proposition has been overruled and being the decision of a Bench of this Court it ,is

binding upon me.

Finally appellant''s learned advocate falls back upon the position that he as one of the creditors of defendants 2 to 4 can take advantage of an

adjudication obtained by another of those creditors. This position is directly negatived by Jagannath v. Ganesh I.L.R.(1896) All. 413 but it is now

contended that since the date of that decision Section 53 of the Transfer of Property Act has been amended so as to make all suits under that

section representative suits. Now, of course a suit by a creditor to set aside an adverse claim order may well in certain circumstances be in essence

a suit u/s 53, but it cannot possibly be argued, I think, that when one creditor merely resists a claim by a claimant his resistance in those summary

proceedings should be deemed to be on behalf of all the creditors. I see no reason therefore why I should not still follow Jagannath v. Ganesh

I.L.R.(1896) All. 413.

The plea of res judicata must therefore fail at all points, and there being no other question of law in this appeal, it is dismissed with the costs of

respondent 1.

Leave refused.