Ram Behari Sahai and Others vs Binda Prasad and Another

Manohar Lall, J.—This is an appeal by Ram Behari Sahai and others who objected to the execution of a decree which was passed against one Kamla Prasad who died on 2nd September 1938, the execution having been started on 27th August of the same year.

The appellants are the transferees of the properties by a sale deed and sudbharna deed executed in their favour by one Moti Bibi who was also a transferee from the judgment-debtor Kamla Prasad by a deed of gift executed on 21st July 1938. The attachment, which was objected to by the appellants, was effected after their objection was filed on 12th December 1938, the attachment having been actually effected on 8th February 1939. On the above statement of facts it is clear that the appellants are not the representatives of the judgment-debtor Kamla Prasad and, therefore, their objection falls to be determined under the provisions of Order 21, Rule 58, Civil P.C., and not u/s 47 of the Code. It follows, therefore, that the appeal is not maintainable and the appellants can succeed only if they can induce us to revise the order passed by the learned Subordinate Judge, dated 26th May 1939, by which he held that although the appellants were in possession of the properties they were in possession without any title.

The learned advocate for the appellants then requested us to treat the appeal as an application in revision and took us through the entire judgment in order to satisfy us that he ought to be granted relief in revision. The facts found, however, are clear, namely that the deed of gift, which was executed in favour of Moti Bibi on 2lst July 1938, was a colourable transaction, and that the judgment, debtor after this deed of gift continued to be in possession of the property so long as he was alive and that this transaction was entered into in order to put obstacles in the way of the decree-holders or to defraud them.

It is argued by the learned advocate for the appellants that inasmuch as they are bona fide transferees from Moti Bibi, who was a donee from the judgment-debtor, the appellants are not affected by any decision arrived at by the learned Subordinate Judge to the effect that their transferor had no title in the property in dispute. But there is a fallacy in this argument. The finding of the learned Subordinate Judge is not that the judgment, debtor did actually execute a real deed of gift in fraud of the creditors but his finding is that the judgment, debtor did not ever intend to pass the property out of his hands and that the deed of gift executed was a mere colourable transaction which was never intended to be acted upon.

In the face of these facts, the authorities cited by the learned, advocate, namely, Ishan Chunder Das Sarkar v. Bishu Sardar (97) 24 Cal. 825 and Harrids Ltd. v. Stanton (1923) 1 K.B. 516, have no application whatsoever.

Having considered the judgment of the learned Subordinate Judge, it is impossible to interfere in revision. The learned Sub-ordinate Judge was entitled upon the evidence to take the view which he did, and he has not exercised any jurisdiction which he did not possess nor has he failed to exercise any jurisdiction vested in him, nor has he acted in the exercise of his jurisdiction illegally or with material irregularity.

For these reasons the appeal is dismissed with costs.

Harries C. J.

I agree.