S.K.MAL LODHA, J. -
(1.)This appeal has been filed by the plaintiff against the judgment dated August 20, 1973 of the learned single Judge by which the appeal filed by him under S.96, C.P.C was dismissed on the ground that it was not properly constituted.
(2.)The plaintiff-appellant instituted a suit for declaration under O.XXI, R.63, C.P.C averring that the amount of Rs. 13,788.14, which was attached in execution cases Nos, 56/66, 75/66 and 63/66 of the court of Civil Judge, Udaipur is not liable to attachment as it was also prayed that the attachment so made should be set aside. Defendant No. 1 Maharaj Ekling Singhji was the judgment-debtor. In this appeal he was impleaded as respondent No.1. He died during the pendency of the appeal and his legal representatives have been brought on record who are also respondents. It was also alleged by the plaintiff that there was a decree against defendant No. 1 for Rs. 5,973.95, which was obtained from the court of Civil Judge, Udaipur on September 14,1964 by defendants Nos. 2,5,6 and 7 and one Tarachand. Under O.XXI, R.52, C.P.C., a sum of Rs. 6503/-, which represented the amount of compensation, was attached. This amount was awarded by the Sub-Divisional Officer, Vallabh Nagar. Defendants Nos. 9 and 10 got attached before judgment, a sum of Rs. 4500/- out of the said sum. Ultimately, a decree was passed on November 24, 1966 against defendant No. 1. Defendant No. 8 Kesarimal, who has not been impleaded as a party in the appeal under S.96, C.P.C. got attached a sum of Rs. 2704.11 vide Execution Case No. 53/66 of the Court of Civil Judge, Udaipur. The plaintiff submitted objections under-O.XXI, R.58, C.P.C. They were dismissed. Hence, the suit under O.XXI, R.63, C.P.C. was filed. The case of the plaintiff is that the compensation amount of Rs. 14,712.39 was assigned to him by registered sale-deed (assignment-deed) dated Feb. 18,1963. After assignment, defendant No. 1 ceased to have any right, title or interest in the said sum. The suit was instituted on February 24,1967. The three sets of the defendants (decree-holders) contested the suit, inter alia, on the ground that the assignment deed (sale-deed) dated February 18, 1963 is a sham transaction and without consideration and that it was executed with an intention to defeat the claim of the creditors. The assignment of the amount by way of sale was also assailed on the ground that no assignment could take place because it was not an actionable claim. It was submitted that as defendant No. 1 was the sole owner of the amount, the amount of compensation was liable to attachment in execution of the decrees. Certain other pleas were also raised, with which we are not concerned. Defendant No. 1 filed the written statement admitting the claim of the plaintiffs. The learned Additional District Judge No. 1, Udaipur framed the necessary issues. It is not necessary to reproduce all the issues except issue No. 3, which, according to us, is material. It is as follows :-
"Whether the sale in favour of the plaintiff is sham and without consideration and has been made to defeat the claim of defendant No. 1's creditors?"
The learned Additional District Judge No. 1, Udaipur, by his judgment dated September 17, 1969, dismissed the suit. While deciding issue No. 3, it was found by him that the assignment-deed (sale-deed) Ex. 1 is sham and bogus, collusive and fraudulent transaction and that there was no genuine transaction.
(3.)Here, it may be mentioned that Kesrimal was defendant No. 8. There were in all ten defendants inclusive of Maharaj Ekling Singh (judgment-debtor-defendant No. 1). Against the judgment and decree of the dismissal of the plaintiff's suit, an appeal under S.96, C.P.C. was filed. In that appeal defendant No. 8, who was party in the suit was not impleaded as respondent. On August 16,1973, on behalf of the respondents, a preliminary objection was raised that the appeal was not properly constituted as Kesrimal, who is one of the creditors and was impleaded as defendant No. 8 in the suit for declaration under O.XXI, R.63, C.P.C., has not been impleaded as respondent. On August 20, 1973, a reply was submitted that Kesrimal, who had contested the suit, agreed to withdraw the attachment and, in fact, withdrew the attachment and so he was not made a party to the appeal. Before the learned single Judge, learned counsel submitted that Kesrimal had no subsisting interest in the subject-matter of the suit and so, the question of there being two conflicting adjudications of the case, does not arise. According to the learned counsel Kesrimal was not a necessary party in the appeal. However, an application under O.XLI, R.20, C.P.C. was filed on behalf of the appellant praying that Kesrimal may be impleaded as party-respondent to the appeal and delay so caused in impleading him may be condoned. The learned single Judge found that after Kesrimal had contested the suit and it had resulted in an adjudication in favour of Kesrimal, regarding the title of the plaintiff in the suit money based on the assignment-deed in his favour, any contrary decision in appeal is bound to lead to two contradictory decrees, in respect of the attached compensation amount. He also did not consider it proper to allow the application filed on behalf of the appellant to implead Kesrimal as party-respondent in the appeal after the lapse of four years. He, therefore, upheld the preliminary objection and dismissed the appeal as not properly constituted. The plaintiff has filed this special appeal under S.18(1) of the Rajasthan High Court Ordinance, 1949.