Guljarkhan Abdul Gafurkhan Sarguro v. Husenkhan Vaidkhan Sarguro

1. This is an application in revision against an order made in appeal by the First Class Subordinate Judge of Ratnagiri. The position is that the present applicant obtained a money decree against opponents 2 and 3, which he applied to execute and opponent 1 intervened on the ground that the property had been sold to him by opponents 2 and 3. That intervention succeeded, and thereupon the applicant filed a suit for a declaration that the sale deed on which the opponents based their claim is void, and that the property is liable to be sold.

2. That application was made under O. 21, R. 63. The trial Judge decreed the plaintiff's suit but on appeal the Appellate Court raised an issue, “Is this suit under Section 63 of the Transfer of Property Act?”, and held that it was and that therefore the suit was not maintainable. The Judge therefore allowed the appeal without going into the merits.

3. Now in the first place the point that this is a suit under Section 53 of the Transfer of Property Act, and should therefore have been by the plaintiff on behalf of himself and all other creditors was not pleaded as it ought to have been under O. 8, R. 2, and that being so I think that the lower Appellate Court ought not to have allowed the point to be raised. I may say however that I am by no means satisfied that a suit brought under O. 21, R. 63, by the judgment-creditor must in all cases be filed on behalf of the plaintiff and all other creditors, notwithstanding a note to that effect in Sir Dinshaw Mulla's book on the Transfer of Property Act. I do not see why the creditor should be compelled to prove that the document was made with intent to defeat and delay creditors generally, if he only wants a declaration in a limited form that the transfer is void as against him. Such a declaration would leave the transferee entitled to any balance of the proceeds of sale after satisfying the execution creditor and it may well be that the declaration made in this by the trial Court was unnecessarily wide and should have been confined to the interest only of the plaintiff. How ever, that is a point which the lower Appellate Court can deal with when it disposes of the appeal on the merits. In my opinion the lower Appellate Court was wrong in allowing the appeal on the preliminary point. The decree of the lower Appellate Court is set aside and the case will be sent back to the lower Appellate Court to be dealt with on the merits on the footing that the suit is well constituted. The respondents must pay the costs of this application.

B.D/R.K

4. Case remanded.