Vellaya Reddiar vs Ramaswami Reddiar and another

Balakrishna Ayyar, J.—The plaintiff is the appellant. On 4th January 1945 the second defendant executed a promissory note in favor of the first defendant for a sum of Rs. 500. On 16th March 1946, the first defendant instituted a suit, O.S. No. 182 of 1946 on the note. He also filed an application for attachment before judgment of the suit property. The property was attached. Meantime, that is to say, on 28th February 1946 the plaintiff purchased the suit property from the second defendant under Ex. A. 2. On the strength of this sale deed the plaintiff filed a claim petition to vacate the attachment. That petition was dismissed on 3rd July 1946. On 14th June 1946 the suit on the promissory note was decreed. Upon his claim petition being dismissed the plaintiff brought the action out of which the present second appeal arises to establish his claim to the property. Both the Courts below found that the sale deed relied on by the plaintiff was sham, nominal and not supported by consideration and that it was intended to defeat the decree which the first defendant might obtain. In that view the suit was dismissed. The lower appellate Court has given several sound reasons for taking the view that the sale deed in favor of the plaintiff is not supported by consideration and that finding must be upheld. Mr. Venugopalachari, the learned Advocate for the appellant, argued that the question which the Courts below formulated for determination was whether the sale to the plaintiff is a sham and nominal transaction and brought about to defraud the debt sued on in O.S. No. 182 of 1946 but that nevertheless there was really no trial of the question whether the debt sued on in O.S. No. 182 of 1946 was real or not and that a finding on that point is necessary.

I do not think that in a suit brought under O. 21, R. 63, C. P. C, the genuineness of the debt for which a decree has already been passed can be investigated. When a person obtains a decree and in execution thereof attaches some property, it is open to the person interested in the property to file a claim petition under 0.21, R. 58 and say "You cannot attach this property. It is mine"; or "I have certain interests in it which you cannot proceed against." Then the Court will hold a summary enquiry into the matter. But it the claim is negative then under O. 21, R. 63, C. P. C., he can file a suit "to establish the right which he claims to the property in dispute." Now this right which he claims may be an absolute right to the property or it may be a more limited right. It seems to me that under O. 21, R. 63, C. P. C., it is only this particular right which the claimant seeks to the property that can be investigated. Otherwise one is up against the position that every time a decree holder seeks to attach a property he will have to prove the genuineness of his debt over and over again in the presence of the person objecting to the attachment.

Mr. Venugopalachari argued that the plaintiff was not a party to the decree in O. S. No. 182 of 1946 and asked how that being so he could be held bound by the decision thereon. One answer to this is that O. 21, R. 63, C. P. C., which defines the scope of a suit under that rule specifically recites that the suit can be only "to establish the right which he claims to the property in dispute." Extraneous matters cannot ordinarily be gone into in such a suit. No authority was cited for the position that in a suit under O. 21, R. 63, C. P. C., it will be open to the plaintiff to require the decree holder to prove that the debt in respect of which he has obtained the decree is a genuine one.

I would next remark that there is nothing to prevent a defeated claimant from filing a comprehensive suit including a prayer for a specific declaration that the debt sued on and the decree obtained thereon are not binding on him, being sham and collusive and intended to defraud him and deprive him of the property he had purchased. When there is no prayer for an explicit declaration of this nature and the scope of the suit is limited to the matters outlined in O. 21 , R. 63, C. P. C., the genuineness of the debt and decree cannot be gone into. The finding that no consideration passed for the sale deed in favor of the plaintiff is unassailable; the second appeal therefore fails and is dismissed with costs. No leave.