LexC. ABDUL SHUKOOR SAHEB versus ARJI PAPA RAO AND OTHERS
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, 2 S.C.R. SUPREME COURT REPORTS 65 C. ABDUL SHUKOOR SAHEB v. ARJI PAP A RAO AND OTHERS (S. K. DAS, K. SuBRA RAo and N. RAJAGOPALA AYYANGAR, JJ.) Fraudulent Sale-Sale effected to defeat creditor-Attach- ment of property sold-Rejection of purchaser's claim-Suit to set aside claim order-Plea of fraudulent sale in defence-Main· tainability-If such plea could be raised only in a representative suit by creditors-Transfer of Property Act, 1882 (4 of 1882), s. 53 (1)-Code of Civil Procedure, 1908 (Act 5 of 1908), 0. 1, r. 8, 0. 21, rr. 58 to 63. The appellant pur~hased the suit property under a sale deed executed by defendant 4 on May 20, 1949. Defendants 3 and 4 had been doing business in partnership, which, how- ever, was dissolved on March 31, 1949. The deed of dissolu- tion showed that the partnership owed debts to the extent of Rs. 2! lakhs and that the suit property was alloted to defendant 4. The first respondent to whom money was due from the partnership obtained a decree onJune 19, i951, and had the suit property attached. The appellant filed a claim petition for raising the attachment but it was dismissed. He then instituted a suit to set aside the summary order under 0. 21, r. 63, of the Code of Civil Procedure. The first respondent's defence, inter alia, was that the sale was fraudulent intended to defeat or delay creditors and, therefore, was invalid under s. 53 (1) of the Transfer of Property Act, 1882. The appellant pleaded that on a proper construction of s. 53 ( 1) of the Act, a transfer which was voidable under the section could be avoided only by a representative suit filed on behalf of creditors and not by an individual creditor by way of defence to a suit to set aside a claim order. The evidence in the case showed that the appellant was not a transferee in good faith and that the transfer itself was a scheme by the transferor with the know- ledge and concurrence of the transferee to put the property out of the reach of the creditors. Held: (1) that s. 53 (I) of the Transfer of Property Act, 1882, rendered a transaction voidable at the instance of the creditors if the transfer was effected with the particular in· tent specified and that the statute did not prescribe any parti- cular method of avoidance. There was nothing ins. 53 (I), as 1962 1962 C, A6du I Slrrikoor Salub v. Arji Po/JG Rao 56 SUPREME COURT REPORTS [1963] SUPP. it originally stood before the amendment of the section in 1929, which precluded a defence by an attaching creditor to a suit to set aside.a summary order under 0. 21, r. 63, Code of Civil Procedure, that the sale in favour of the plaintiff was vitiated by fraud ; and the amendment made no change in this matter. (2) that it was merely to have a uniform rule and to avoid conflicting decisions that the third paragraph was insert- ed ins. 53 (I) so that after the amendment, the rule that a suit by a creditor should be brought in a representative capacity .vould apply as much to a suit to set aside a summary order under 0. 21, r. 63, as to other suits. (3) that the terms of s. 53 (I) were satisfied even if the transfa· did not "defeat" but only "delayed" the creditors. The fact that the entirety of the debtor's property was not sold could not by itself negative the applicability of the section unless it was proved that there was other property left, ,ufficient in value and of easy availability to render the alienation in question immaterial for the creditors. RMnaswam·i Ghettiar v. Mallappa Reddiar, 1·· (1920) I. L. R. 43 Mad., 760, approved. CIVIL APPELLATE jURISDWTION: Civil Appeal No. 164 of 1962. Appeal from the judgment and decree dated Juoe 19, 1958, of the Andhra Pradesh High Court in Appeal Suit No. 944 of 1953. K. Bhimasanlcaram, J. V. Krishna Sarrna and T. Satyanarayana, for the appellant. A. Ranganadham Ghetty, Miss A. Vedavalli, N. Rajeshwara Rao and A. V. Rangam, for respon- dents 1 (a) and l (b). 1962. November 14. The Judgment of the Court was delivered by AYYANGAR, J.-This appeal comes before us on a certificate of fitness granted by the High Court of Andhra Pradesh under Art. 133(1)(a) of the Coustitu· tiou. ., - ' ---' 2 S.C.R. SUPREME COURT REPORTS 57 The following facts are necessary to be stated to appreciate the contentions urged before us. \Ve con- sider it would be convenient to refer to the parties by their array in the trial Court. The 2nd defendant- firm Hajee Abd
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