Subramania Aiyar and Another vs A.L.V.R.R.M. Muthia Chettiar (dead) and Others

Ayling, J.—In this case the appellants (plaintiffs) are purchasers of the suit property from 2nd defendant by a sale-deed, Ex. A dated 20-6-

1904. First defendant subsequent to this sale obtained a decree against 2nd defendant in S.C.S. No. 1960 of 1905, and in 1913 attached the suit

properties in execution. Plaintiffs preferred a claim on the dismissal of which they filed the present suit for declaration of their title, and for

cancellation of the summary order on their claim.

The suit failed in both the lower courts, the Subordinate Judge holding in 1st appeal that the sale was a fraudulent transaction intended to defeat

or delay 2nd defendant''s creditors though not a mere sham transaction.

It is now argued in secoud appeal that it is not open to 1st defendant to set up such a defence in the present suit; and that the sale must be held

good against him unless and until he obtains a decree setting it aside in proceedings suitably instituted for that purpose. Mr. A. Krishnaswami Aiyar

relies on a recent ruling of this Court, reported in Palaniandi Chetty and Others Vs. M.V. Appavu Chettiar and Others, and the Secoud Appeal

appears to have been specially ordered to be heard by us with a view to the correctness of this ruling being considered by a Bench of three

Judges.

Speaking for myself I have carefully considered the judgment in the case referred to and the arguments of Mr. Seshachari who has endeavored

to show us that the decision is wrong. The facts are absolutely analogous to those in the present case It is unnecessary for us in the present case to

consider whether a suit by a creditor to avoid an alienation as infringing against Section 53 of the Transfer of Property Act must be brought in a

representative capacity on behalf of the body of creditors; but apart from this I have no hesitation in concurring in the views expressed by Courts

Trotter and Seshagiri Aiyar JJ., in that case. The only case quoted by Mr. Seshachari which has not been dealt with in their judgment and which

appears to have any bearing on the question is a Calcutta ease not reported in the regular series (Abdul Kadir v. Ali Mia (1912) 15 C.L.J. 649

Withal] respect, I cannot agree with the decision I do not find in it sufficient authority for the proposition advanced by Mr. Seshachari that anything

which can be made the basis of a suit can be pleaded as a bar in action and I agree with my learned brother Seshagiri Aiyar, J. in Palaniandi Chetty

and Others Vs. M.V. Appavu Chettiar and Others, that a sale such as the one we are considering must be held to continue in force until it is set

aside in proceedings properly instituted for the purpose.

It follows that the decrees of the lower courts in the present suit should be set aside and plaintiffs be given a decree as sued for with costs

throughout.

Seshagiri Aiyar, J.

I agree. The further arguments addressed to us by Mr. Seshachariar have not convinced me that my view in Palaniandi Chetty and Others Vs.

M.V. Appavu Chettiar and Others, is wrong and that an attaching creditor as defendant can obtain a declaration that the sale by his judgment-

debtor which he has not sued to set aside is in fraud of his and other claims against the common judgment-debtor and that on that ground the suit

should be dismissed.

Bakewell, J.

I agree.