A single creditor can maintain a suit under Section 53 of the Transfer of Property Act, 1882 to set aside a transfer made with intent to defeat and delay creditors.

( 1 ) THIS is an appeal under the Letters Patent against an order of Chandrasekhara Sastry J. , in S. A. 1266 of 1959 remanding the case to the 1st Appellate Court for fresh disposal in the light of the observations that he made in his judgment.

( 2 ) THE relevant facts are these : The suit out of which the appeal arises is one to set aside an adverse order made against the decree-holder in execution of his decree in S. C. 384/53 against one Piler Khasim Saheb. The said decree was obtained by Piler Miah Saheb on the foot of a pronote executed by the said Khasim Saheb, hereinafter to be referred to as the judgment - debtor on 5-12-50 for Rs. 260. 00. The said judgment-debtor had earlier borrowed Rs. 500. 00 from one Bhaskara Chalamiah under a usufructuary mortgage of his lands on 17-8-1944, Ex. B. 1. The said Bhaskara Chalamiah obtained a sale deed of the lands covered by the mortgage from the judgment-debtor, Ex. B. 2 dt. 22-5-53 in discharge of his mortgage debt.

( 3 ) WHEN the judgment- creditor attached the said lands sold to Bhaskara Chalamiah, the latter filed a claim petition, E. A. 606/55 on 1-8-55 basing his claim on the sale deed obtained by him in discharge of his own mortgage debt. His claim petition was allowed and the attachment was raised. The judgment -creditor therefore filed a claim suit against the adverse order raising the attachment, and that is the suit out of which the appeal has arisen. He impugned the sale in favour of Bhaskara Chalamiah as made with intent to defeat and delay the creditors of the judgment-debtor and so he alleged that it had to be set aside.

( 4 ) THE Dt. Munsif, Madanapalle, decreed the suit of the judgment- creditor and permitted him to proceed with the sale of the suit lands subject to the mortgage in favour of Bhaskara Chalamiah. The learned Dt. Judge on appeal dismissed the suit holding on a preliminary point that the judgment- creditor could not impeach the sale as one in fraud of creditors as he was the only creditor. He observed that the crucial point was not properly canvassed before the trial Court.

( 5 ) OUR learned brother disagreed with this view and remanded the case with these observations : "but these are questions of fact which have to be determined by the learned Dt. Judge in appeal and he has not determined them. He has first to determine on the evidence what is the proper value of the property, what was the debt owing, if at all, under the usufructuary mortgage, and whether the alienation under Ex. B. 2 was made for a proper value and also initially whether it was really intended to be an alienation at all or whether it is a nominal one".

( 6 ) IT is argued before us that the judgment- creditor being the only creditor cannot maintain the suit contemplated by Section 53 of the Transfer of Property Act. The learned counsel argued that a pre-requisite of such a suit was that at the date of institution of the suit, there should be more creditors than one and that it should be established so. The correctness or otherwise of this contention is the question for our consideration.

( 7 ) SRI Ramamohana Rao has relied on the language of section 53 of the Transfer of Property Act and particularly the reference to the creditors of the transferor in the first part of the section and that a suit shall be instituted on behalf of or for the benefit of all the creditors. The learned counsel has argued that from this the section has to be construed as contemplating a plurality of creditors on the date of the institution of the suit and consequently that a single creditor cannot avail of this provision.

( 8 ) WE have, however, to notice that the representative suit contemplated was made necessary for two reasons : firstly that the debtor shall not be harassed by a multiplicity of suits, and secondly that the assets of the debtor shall be made available to the general body of creditors.

( 9 ) O. 1, R. 8, C. P. C. , which is the procedure prescribed for a representative