Salil Kumar Datta, J. - (1.)This Rule is directed against an Order No. 87 dated 11/2/1971 passed by the learned Subordinate Judge. Fourth Court Alipore dismissing the application of the petitioner defendant No. 2 dated 29/11/1969. The facts of the case are as follows:- The plaintiff, Union of India instituted a suit on 21/7/1964 being title suit No. 68 of 1964. renumbered Title Suit No. 78 of 1968 on the allegation that the defendant No. 1 Sk. Munna Mia, a businessman, was found liable on account of income-tax for over Rs. 3.26 lakhs for the assessment years 1946-1947 to 1949-1950. On account of non-payment, four certificate cases were initiated and during the pendency of the certificate proceedings, the defendant No. 1. to defraud the Government of its said dues, transferred by several documents various immoveable properties to a private company, the defendant No. 2, the petitioner before us. This company was formed with his family members, the consideration of the transfers being shares in the said company gifted by the defendant No. 1 to them. The plaintiff accordingly prayed for declaration that the said documents mentioned in the plaint were sham, fraudulent, benami and ineffective in law and the properties therein were liable to be sold in execution of the certificates.
(2.)The defendant No. 2 on service of summons entered appearance and filed its written statement denying that the transfers were sham, fraudulent, benami and ineffective in law. It was stated that the transfers were legal, valid and for consideration and the properties so transferred were not liable to be sold in execution of the certificates.
(3.)In spite of several attempts, summons of the suit could not be served on the defendant No. 1 but curiously enough the suit was placed on board for peremptory hearing and was ultimately fixed on 1/11/1968 for hearing. On the preceding day i.e. on 31/10/1968 the defendant No. 2 by a petition informed the court that the defendant No. 1 died on 17/12/1967 and accordingly adjournment of hearing of the suit was prayed for,