Jagir Singh and Others vs Dalbara Singh and Another

D.K. Mahajan, J.—This is an execution appeal and is directed against the decision of the executing Court allowing the objections of Dalbara Singh that the property in dispute cannot be attached and sold in execution of a decree against Bakhtawar Singh.

Dalbara Singh is the son of Bakhtawar Singh. The property in dispute belongs to Bakhtawar Singh; but was sold by him to his son on 1st April, 1959. The property was attached by the decree-holders Bant Singh and others in execution of their decree; and to the attachment, objections were raised by Dalbara Singh on the 22nd April, 1961. These objections were allowed by the executing Court on appeal, the decision of the executing Court was set aside and the appellate Court framed the following issue for determination:-

Whether the sale of the land in dispute by Bakhtawar Singh in favour of Dalbara Singh was effected in order to defeat and delay the creditors of Bakhtawar Singh?

After recording evidence, the executing Court has cone to the following finding:-

* * *. The sale was decidedly effected to defeat the present decree-holder; yet it could not be said to be a sale which was effected in order to defect and delay the general body of creditors of Bakhtawer Singh.

In this view of the matter, the executing Court allowed the objections of Dalbara Singh. The decree-holders have come up in appeal to this Court.

The short contention advanced by the learned counsel for the appellants is that the executing Court was wrong that the contest should have been by the decree-holders on behalf of the general body of creditors. The contention is that the contest arose in defence and not in a suit by the decree-holders. In these objections, the position of the decree-holders was that of defendants and of the objectors that of plaintiffs. Therefore that part of the provisions of section 53 of the Transfer of Property Act requiring the suit to be on behalf of the general body of creditors will not apply. In this connection reference is made to the decisions in V. S. V. Thangavelu Mudaliar v. G. Thirumalswami Mudaliar AIR 1956 Mad. 67 and C. Abdul Shukoor Saheb Vs. Arji Papa Rao and Others, . It has also been urged that the technical provisions of section 53 of the Act as to the torn of the suit have no applicability to Punjab. For this, reliance is placed on the decision in Badri Dass Nihala Mal Vs. Chunilal Roda Mal and Another, . Both these contentions appear to be correct. The learned counsel for the respondents does not challenge the legal propositions. His contention merely is that the sale has been made to the son in order to pay off certain creditors and, therefore, the transaction amounts to giving preference to some creditors over the others and, therefore, the provisions of section 53 do not come into play. It is not disputed that the son has not paid off any of the creditors and part of the debt is a secured debt and there is no proof that there was pressure by any of the creditors which would necessitate the sale. In this situation, it appears that the sale was merely to defeat the present decree-holders and is not justified in view of the provisions of section 53 of the Transfer of Property Act. The present case is fully covered by the decision of the Supreme Court in C. Abdul Shukoor Saheb''s case.

For the reasons recorded above, I allow this appeal and set aside the order of the executing Court allowing the objections of Dalbara Singh. The case will now go back to the executing Court for further proceedings. The parties are directed to appear in the executing Court on 16th of May, 1966. The costs will be costs in the cause.

Appeal allowed.