( 1 ) THIS appeal filed under Section 96 of the Code of Civil Procedure (the Code for short) is directed against the judgment and decree dated 5/05/2001 recorded in Special Civil Suit No. 43 of 2000 by the learned Civil Judge (S. D. ). , Gandevi by which suit filed by respondent No. 1 against the present appellant and respondent Nos. 2 to 5 for relief of declaration that the sale deed registered on 10/11/1995 bearing registration No. 1164 with the office of the Sub-Registrar in respect of the property mentioned in para 11 of the plaint executed by deceased Manekben Mohanlal Kansara and respondent Nos. 2, 3 and 4 in favour of the appellant is in collusion with one another fraudulently with a malafide intention with a view to defeat the legitimate claim of respondent No. 1 bank of recovering its outstanding amount and, therefore, the said transaction is illegal, null and void and unenforceable, came to be decreed in favour of respondent No. 1 bank.

( 2 ) APPELLANT is original defendant No. 5, who is the only contesting party in this appeal, respondent No. 1 bank is the plaintiff whereas respondent Nos. 2, 3, 4 and 5 are defendant Nos. 1, 2, 3 and 4 respectively and for the sake of brevity and convenience parties hereinafter in this judgment will be referred to as "plaintiff bank" and "defendants".

( 3 ) BY the consent of the learned advocates appearing for the parties, this appeal is decided at notice stage by calling record and proceedings from the lower court. Since defendant No. 5 who has preferred this appeal is the only contesting party, rest of the defendant Nos. 1, 3 and 4 though served with the notice elected to remain absent whereas defendant No. 2 has expired and, therefore, it is decided to proceed with the matter in their absence.

( 4 ) BEFORE highlighting the nature of controversy posed for my determination in this appeal, it is necessary to advert few but relevant facts of the case of the plaintiff bank and the defence of the defendants pleaded before the trial court in nutshell. 4. 1. PLAINTIFF, a Co-operative bank registered under the provisions of the Gujarat Co-operative Societies Act (the Act for short), is engaged in banking business. Defendant Nos. 1 and 2 had availed of loan facility from the plaintiff bank for the amount of Rs. 30,000. 00 For recovery of the said amount of Rs. 30,000. 00 the plaintiff bank had instituted Lavad Case No. 115 of 1982 before the Board of Nominees at Surat. The Board of Nominees allowed the Lavad Case of the plaintiff bank and passed a decree against defendant Nos. 1 and 2 for the sum of Rs. 42,744/thereafter the plaintiff bank preferred Special Execution Application No. 16 of 1990 in the Court of learned Civil Judge (S. D. ). , Navsari. On February 5, 1992 the decretal amount alongwith interest accrued thereon was fully paid up and, therefore, execution proceeding was withdrawn and accordingly the said Lavad Case No. 115 of 1982 came to an end. 4. 2. FOR the second time, defendant Nos. 1 and 2 availed of loan facility from the plaintiff bank but second time loan was prayed for in the name of partnership firm i. e. , defendant No. 4 by defendant Nos. 1 and 2 as partners of the said firm. Defendant Nos. 1 and 2 failed to pay the loan amount and, therefore, the plaintiff bank had instituted Lavad Case No. 184 of 1990 before the Board of Nominees at Surat for recovery of Rs. 2,11,175. 00 with interest. On 26/08/1992 a decree was passed by the Board of Nominees wherein defendant Nos. 1 and 2 as partners of the partnership firm agreed and undertook to pay Rs. 15,000/per month to the plaintiff bank by way of monthly instalment and agreed to repay the amount in 24 monthly instalments. As per the said decree, on the basis of the settlement, on failure of the defendants to pay any one of the instalments it was open for the plaintiff bank to execute the decree against the defendants on their movable and immovable properties. 4. 3. DESPITE the aforesaid decree passed by t