A suit by a debtor or a transferee from a debtor to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor is maintainable, and such a defence can be raised in a suit by the debtor or a transferee from the debtor.

R. P. MOOKERJEE, J.

( 1 ) THIS is an appeal on behalf of the plaintiff, and it arises out of a suit brought by him under Rule 63, Order 21, Civil P. C. , and is directed against an order of dismissal of a claim preferred by him in certain execution proceedings.

( 2 ) TO appreciate the points in issue, it will be necessary to refer to some of the circumstances under which the suit came to be filed.

( 3 ) ONE Gopal Chandra Sinha, father of the plaintiff who was in possession of extensive properties leaving a testamentary disposition. There executors were named by him. In 1931, the plff. Purna Chandra Singha filed a suit in the Original Side of this Court against his father's executors for various reliefs, including the administration of the estate left by Puma's mother, for recovery of certain properties belonging to the latter and some other reliefs. This suit was decreed in June 1933, allowing certain specific claims in favour of the plaintiff. Under the decree, further enquiries were to be made and certain accounts taken. The reference was continued before the Assistant Referee in the Original Side of this Court, and a report was in due course filed some time later. Exceptions were taken to the report as submitted, and after the hearing had proceeded, cerain terms of compromise were filed and a consent decree was passed. The exceptions which were pending before the Court were not pressed. The report by the Assistant Referee was confirmed. The executors defendants became entitled to get the costs of that suit, including the reference, from out of the estate of Gopal Chandra Singha. The plaintiff Purna was allowed to pay the costs out of the estate of his mother Madhabmohini.

( 4 ) IN these litigations, the solicitor who acted for the plff. was the defendant in the present suit. The defendant is Sarojendra Kumar Dutta and he filed a bill of costs in respect of the costs incurred by him and also for remuneration due to him for the proceedings before the Assistant Referee. Objections had been taken, but ultimately the costs, as settled by the Court, were made payable. It is not necessary at this stage to refer to the various proceedings which were initiated by the solicitor for getting payment of the amount due. Ultimately, a suit was filed by the solicitor in respect of the amount due to him, and that suit was numbered 166 of 1945. That suit was decreed. The decree was transferred to the court of the Subordinate Judge at Alipore, and premises No. 99/1, Karaya Road, were attached as the personal property of Purna. It may be stated that the decree which was obtained by the solicitor against Purna was in his personal capacity as also as administrator to the estate of his mother. On such attachment being made, claim was put forward by Purna in his capacity as trustee. It was claimed that he had created a trust in respect of the property and it could not be attached as the personal property of his. This claim was dismissed by the executing Court on the finding that the property was in possession of Purna in his personal capacity and not qua trustee. The questions of title which had been raised during the hearing of the claim case by the decree holder were not gone into because of the scope of an enquiry under Order 21 Rule 58, Civil P. C.

( 5 ) IT is after this decision that the plaintiff filed the present suit for declaration that the property in question belonged to the plaintiff in his capacity as trustee and was not his personal property. He also prayed for a permanent injunction for restraining the defendant from attaching or selling the property in execution of the decree passed by the High Court in the Original Side of this Court in Suit No. 166 of 1945 or in Money Execution Case No. 38 of 1947. It was stated in the plaint that this property originally belonged to the estate of the plaintiff's father Gopal Chandra Singha, and under the will, the plaintiff was entitled to a monthly allowance of Rs. 250/-; the executors had

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