J.V. Gupta, J. - (1.) 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 a pro -note 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 under Section 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 and not binding upon the decree -holder. According to the executing Court, the said decree though based on consent, was binding on the decree -holder as it WIS 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.
(2.) 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, whereas the suit was filed by the decree holder on May 24, 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 upon Shallo Devi v. Mohinder Singh, A.I.R. 1971 P&H. 325. 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, Section 53 of the Transfer of Property Act reads as under: (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 transferee in good faith and for consideration. Nothing in this 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 creditors of the transferee shall be instituted on behalf of, or for the benefit of, all the creditors. (2) Every transfer of 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 for consideration was made.
(3.) IT was held in Shallo Devi's case (supra), that a creditor can exercise his option to avoid a fraudulent transfer (collusive decree in that case) under Section 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.;