Sulaiman, J.:— This is an appeal by one of the objectors arising out of an execution proceeding. It appears that a certain amount of money was due to the plaintiff decree-holder from defendant 1 on a sarkhat. Subsequently the debtor executed a deed of gift of his immovable property in favour of defendants 2 to 7. After this, in October 1924, the creditor brought a suit to recover the amount due on the sarkhat, in which he impleaded not only his original debtor but all the donees also. As there was no charge on any property he of course could not claim a decree for sale or any other consequential relief as regards any immovable property of the debtor. But the plaintiff in his plaint stated that defendant 1 had made a gift of all his property in favour of the other defendants on whom the debt was binding and who had therefore been impleaded. The relief which he actually claimed was that his claim should be decreed against the “defendant”. All the defendants were absent and the Court held that the plaintiff had only claimed relief against defendant 1 and not the other defendants. It accordingly decreed the claim for money against defendant 1, but ordered that “the other defendants should be exempted.” In the decree which was prepared these exempted persons were shown in the array of the defendants, but the order exempting them was incorporated in this decree. Neither party appealed and that decree became final.
2. The plaintiff proceeded to execute the decree by attaching the gifted property. It was to this attachment that the objection was raised by the donees. They were met with the reply that the transfer in their favour was a gratuitous transfer with intent to defeat, or delay the creditor and was accordingly voidable at his option under Section 53 of the Transfer of Property Act.
3. The execution Court held that the objection was well founded and allowed it. The lower appellate Court has come to the contrary conclusion holding that the decree-holder was not debarred from raising the question that the legal gift was voidable under Section 53 of the Transfer of Property Act. One of the objectors has appealed to this Court.
4. The learned advocate for the appellant has first contended that the objection fell under O. 21, R. 58 of the CPC, and not under S. 47, and that, therefore, no appeal lay to the lower appellate Court. The contention is that the order of the original Court exempting the defendants amounted to directing that their names should be struck off from the record, and that accordingly they ceased to be parties to the suit and must be treated as strangers who were objecting to the attachment. If this contention were correct, the appellate Court would have no jurisdiction to hear the appeal. In our opinion, however, this contention cannot prevail. No doubt the word “exempted” used by the original Court was an ambiguous word and its use was unfortunate. The Court should have been more exact in its language and should have either said that the suit was dismissed against the defendants or should have ordered that they should be exempted from the suit and their names should be struck off from the record. It was not a case where the plaintiff himself had requested the Court to exempt these defendants. The Court itself when it came to deliver judgment was of opinion that as no relief was claimed against them the suit could not be decreed against them.
5. In our opinion the effect of the order was to dismiss the suit as against these defendants. There was a similar unhappy use of the word “exempted” in the case which came up for consideration in Data Din v. Nanku . [1918] 16 A.L.J 752. The Bench held that the expression was an inaccurate expression, but the operation of it was to dismiss the suit as against the particular defendant. The subsequent case of Raja Ram v. Chhadammi Lal . A.I.R 1926 All. 475 is not in point because there the effect of S. 47 was avoided by the circumstance that the plaintiff in the subsequent suit was seeking to challenge the validity of the decree itself. The explanation to S. 47 added to the new Code makes it clear that a defendant against whom a suit has been dismissed is a party to the suit for the purposes of the execution, discharge or satisfaction of the decree. We must, therefore, hold that defendants 2 to 7 against whom the suit stood dismissed, remained parties, and that, therefore, their objection falls under Section 47 of the CPC, with the result that an appeal lies to the lower appellate Court, and a second appeal lies to this Court.
6. The next point urged on behalf of the appellant was that, inasmuch as no relief was claimed by the plaintiff in the suit itself for avoiding this gift, the matter is barred by O. 2, R. 2, or by the principle of res judicata. The third point is that an execution Court cannot under O. 21, R. 61, go into the question of the transaction being voidable or not, and the last point urged is that in any case the plaintiff has lost his right to exercise the option. In the view which we take of the last point it is not necessary to consider the other contentions urged on behalf of the appellant.
7. Under Section 53 of the Transfer of Property Act, a transfer with intent to defeat or delay a creditor is “voidable at the option” of the person so defeated or delayed. When such a person becomes aware of the transaction which he has an option to avoid, he must not affirm it expressly or do any act which amounts to an affirmation of the transaction so as to destroy his right of avoiding it. He has the election of either accepting the transaction or of avoiding it. Once he has decided to do one thing he loses the other option, and cannot be allowed to reprobate what he has approbated.
8. When the present plaintiff instituted his suit he admitted the validity of the deed of gift in favour of the defendants-and in fact went on to allege that the entire property belonging to his debtor had been transferred, with the result that the debt was binding on the transferees, and it was on account of their obligation to pay this debt that they were impleaded in the suit. The lower appellate Court his not appreciated the nature of the claim, and has remarked that the bad drafting of the claim was responsible for the muddle and the plaintiff had in fact no business to implead the donees in the former suit. But Section 128 of the Transfer of Property Act, makes a universal donee, to whom the entire property of the donor has been gifted liable for all the debts due by the donor at the time of the gift to the extent of the property comprised therein. Beading the allegations contained in the plaint and the reasons given for impleading the other defendants there is no doubt that the plaintiff intended to claim the relief to which he was entitled under Section 128 of the Transfer of Property Act, though that section was not expressly mentioned. It might have been his misfortune that the Court thought that no relief had been claimed against the other defendants as the word “defendant” was used in the singular. The plaintiff did not appeal from the decree. The affect of that proceeding undoubtedly was that the plaintiff affirmed the validity of the dead of gift in favour of the defendants, and indeed sought to claim relief against them on the strength of that gift. In the plaint he at no place suggested that it was a voidable transaction which he had a right to avoid and which he intended to avoid. It might be said that he was not bound to ask for a declaration in that suit, but he ought to have at least made it clear that he was reserving his right of avoiding such a transaction in future. His attitude at that time was that the gift was valid and that the defendants were liable for the debt on account of such gift. In view of this circumstance we are of opinion that the plaintiff cannot now be allowed to go back upon his former position and to assert that the deed of gift in favour of the defendants was not in fact valid, but that it was voidable and has since been avoided by him. Without taking up this new position, wholly contrary to the former position, he cannot proceed to attach this property and seek to sell it. He must be deemed to have elected to accept the gift, and his option to avoid it is accordingly lost. We are, therefore, of opinion that the decree holder's application for execution by attachment of the property should fail on this last-mentioned ground.
9. The result, therefore, is that this appeal is allowed, the decree of the lower appellate Court set aside and the order of the execution Court restored with costs in all Courts including in this Court fees on the higher scale.
S.J
10. Appeal allowed.