Decided on October 11,1944

G.K. Radhakrishna Chetty And Ors. Respondents


Horwill, J. - (1.) ON 18th July 1904, one Ramaswami gifted the suit house to his wife. On 8th February 1905, by Ex. D -1, the wife sold the property to the appellant, who leased it back to Ramaswami. In O.S. No. 1094 of 1905 on the file of the District Munsif of Erode, a creditor of Ramaswami brought a suit Under Order 21, Rule 68 against the claim order holding that the gift by Ramaswami and the sale by his wife were true. That suit was dismissed, as was the appeal to the District Court. Later on, respondent 1 sought to proceed against the property. On the claim petitions, it was held as before that the gift and sale were true. Consequently, the defeated creditor, who is respondent 1, filed O.S. No. 115 of 1942 to establish his right to proceed in execution against that property; and he contended therein that the gift and the sale were nominal. At the same time, the appellant filed O.S. No. 116 of 1942 against the sons of Ramaswami, who has since died, to recover the property. These suits were tried together; and it was held that the gift and sale were nominal transactions. Appeals by the appellant to the Subordinate Judge of Coimbatore were unsuccessful.
(2.) THE principal point argued in appeal is with regard to the effect of the earlier decisions in O.S. No. 1094 of 1905 on the file of the District Munsif of Erode and in the appeal therefrom, O.S. No. 43 of 1907, on the present litigation. It is contended by the appellant that although O.S. No. 1094 of 1905 was apparently brought by the creditor for himself alone, yet he must be deemed to have been litigating on behalf of the general body of creditors and that therefore under Expln. 6 to Section 11, Civil P.C., the earlier decree would be res judicata in the present litigation. The lower Court discussed this question briefly and very generally and came to the conclusion that the earlier decree was not res judicata, because the parties were not the same. It did not consider the effect of Expln. 6 to Section 11, Civil P.C. It is very clear that the creditor in O.S. No. 1094 of 1905 did not intend to litigate on behalf of the general body of creditors and did not in fact do so. He was merely concerned with having it declared that the gift and sale were nominal, in order that he might proceed against the property. He was not concerned with the other creditors. A somewhat similar question came up for consideration in Jagaunath v. Ganesh , 18 All. 413 and Pethuraju Kone v. Muthuswami Iyer , A.I.R. 1942 Mad. 128 where it was held that when a creditor merely resists a claim by a claimant, his resistance in the summary proceedings cannot be deemed to be on behalf of all the creditors. The learned advocate for the appellant however relies on brief passages in the two judgments. In the Allahabad case it was said: We say nothing as to what might be the effect of the order Under Section 280, Section 281 or Section 282 (Order 21, Rules 60, 61 and 62) in favour of one decree -holder so far as the other decree -holders were concerned who had obtained attachment. King J. in Pethuraju Kone v. Muthuswami Iyer, A.I.R. 1942 Mad. 128 said: Now, of course, a suit by a creditor to set aside an adverse claim may well in certain circumstances be in essence a suit Under Section 53, T.P. Act.
(3.) THE learned Judge was considering Section 53 as it now stands after the recent amendment. Under the old Section 53 there was no obligation to file a suit in a representative character. A case that has been referred to by both sides is Kumaravelu Chettiar v. a decision of the Privy Council. In that case, a suit purported to be Under Order 1, Rule 8; but the terms of that Order were not properly complied with; e.g., notice was not sent; nor was permission of the Court obtained. This High Court held that despite these defects the decision in that suit did operate as res judicata in a subsequent litigation between a person having the same right and the same defendant. Their Lordships disagreed; but reading their judgment as a whole, it is clear that they avoided discussion of the general question whether a decision in a suit not filed as a representative suit would operate as res judicata against persons who were not parties to the prior litigation. Their Lordships confined themselves to the question directly before them, namely, whether in a suit that purported to be a representative one, but in which the provisions of Order 1, Rule 8 were not properly complied with, the decision would nevertheless operate as res judicata in a subsequent litigation by virtue of Expln. 6 to Section 11, Civil P.C. Their Lordships held that it would not.;

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