Waryam Singh vs Rameshwar Dass and Others

J.V. Gupta, J.—The decree holder petitioner filed the suit for the recovery of Rs. 10,880/ - on May 24, 1978. The suit was filed on the basis of an advance by way of loan under pronote and the receipt, dated May 13, 1975. The said suit was decreed on May 19, 1980. In execution, the land belonging to the judgment-debtor Waryam Singh, Measuring 62 kanals was attached. When the decree-holder submitted an application under Order XXI Rule 66, Code of Civil Procedure, for the sale of the attached land, the judgment-debtor filed the application dated February 2, 1983, stating therein that he was a marginal farmer as provided under the Haryana Relief of Agricultural Indebtedness Act, 1976, (hereinafter called ''the Act'') and his income did not exceed Rs. 2,400/ - per annum and as such his debt shall be deemed to have been wholly discharged u/s 5 of the Act. Simultaneously, the wife of the judgment debtor Shrimati Gaindi also filed a separate objection application dated April 3,1981, stating therein that she was the sole owner of the attached land through decree dated March 4,1978 and as such it had been wrongly attached. The executing Court framed the issues including the one whether the decree dated March 4, 1978 is illegal, void ab initio land not binding upon the decree-holder. According to the executing Court, the said decree though base on consent was binding on the decree-holder as it was prior to the filing of the suit by the decree holder on May 24, 1978. According to the executing Court Shrimati Gaindi stated in her cross examination that her husband was a drunkard and he did not give a penny to her for the maintenance of her six children. She then referred the matter to the Gram Panchayat. The Gram Panchayat forced her husband to get the land transferred in her favour. It was in these circumstances that she filed the suit against her husband. The executing Court found that the judgment debtor did not own any land and was working as a labourer. As claimed by him, his income was less than Rs. 2,400/ - per annum. In these circumstances, his debt stood discharged in view of the provisions of the said Act.

The learned Counsel for the petitioner submitted that the said decree obtained by the wife on March 4, 1978 was not binding on the decree-holder in view of the provisions of Section 53 of the Transfer of Property Act. According to the learned Counsel, the husband suffered the decree in favour of his wife knowing it full well that he had taken the loan by executing a pronote and a receipt dated May 30, 1978. That being so, it was immaterial that the suit filed by the wife against her husband was decreed earlier, i.e. on March 4, 1978. Thus argued the learned Counsel, the view taken by the executing Court was wholly wrong and illegal. In support of the contention, the learned Counsel relied upo Shallo Devi and Another Vs. Mohinder Singh and Others, . According to the learned Counsel, if once the said decree is held to be not binding on the decree holder, the judgment debtor is not entitled to the protection under the Act.

3.(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferor in good faith and for consideration.

Nothing in sub-section shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree holder, whether he has or has not applied for execution of his decree), to avoid transfer on the ground that it has been made with intent to defeat or delay the creditor of the transferee shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer to immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer of consideration was made.

It was held in Shallo Devi''s case (supra), that a creditor can exercise his option to avoid a fraudulent (collusive decree in that case) u/s 53 by attaching the transferred property in execution of his decree. A regular suit is not necessary for avoiding the transfer. Thus, on the facts and circumstances of the case, the view taken by the executing Court was wholly wrong and illegal. Simply because the decree was passed earlier to the filing of the suit by the decree-holder, it was of no consequence as the loan had been taken much earlier in May, 1975, by the judgment-debtor.

It could not be disputed that if the decree in favour of the wife is avoided then the judgment debtor is the owner of 62 kanals of land which he fraudulently transferred by way of a consent decree in favour of his wife. Thus, he could not claim the protection of the Act.

In these circumstances, the revision petition succeeds and is allowed. The impugned order is set aside and the objection application filed by the wife as well as by the judgment-debtor are dismissed. The parties are directed to appear before the executing Court on March 16, 1989, for further proceedings in accordance with law. However, the executing Court will ensure that only that much land will be sold in execution of the decree which may be necessary to satisfy the claim of the decree-holder petitioner and not necessarily the total land attached.