A single creditor is entitled to bring a suit under S.53 of the Transfer of Property Act, and the dismissal of a previous suit does not operate as a bar to the present suit for a declaration under S.53 of the T.P. Act.

1. The plaintiffs in O. S. No. 269 of 1959 on the file of the Munsiff's Court, Perumbavoor, are the appellants. The suit is one for declaration that Ex P-1 sale deed dated 5-1-1951 is in fraud of the creditors and is, therefore, liable to be cancelled. The trial court dismissed the suit holding that the suit is barred by limitation. This finding of the trial court was upheld by the Additional District Court, Parur, in A. S. No. 144 of 1964 filed by the defeated plaintiffs.

2. In the second appeal the main grounds raised are that the courts below are in error in holding that the suit is barred by limitation that being a suit under S 53 of the Transfer of Property Act, the proper provision applicable is Art.20, not Art.11 of the Limitation Act of 1908, that the suit is not barred by res judicata, and that the plaintiff even as a single creditor is entitled to bring a suit under S.53 of the Transfer of Property Act.

3. The facts of the case, briefly stated are as follows: The first plaintiff to whom the second defendant owed money, obtained a decree in O. S. No. 38 of 1951 on the file of the Munsiff of Trichur. In execution of that decree the plaintiff decree-holder attached the plaint schedule property. The first defendant put in a claim stating that under Ext. P-1 sale deed she is the owner of the property and that the second defendant had absolutely no interest whatsoever in that item. This claim was upheld as per the order dated 2411 1956. Thereafter the 1st plaintiff instituted O. S.387 of 1957 on the file of the Munsiff's Court, Perumbavoor for setting aside the order on the claim petition. That suit was filed on 4-12-1957, one year and ten days after the passing of the order on the claim petition. That suit was dismissed on the ground that under Art.11 of the Limitation Act a suit under Order XXI, R.63 of the Code of Civil Procedure ought to have been filed within one year from the date of the order on the claim petition. The first plaintiff took up the matter in appeal, A. S. No. 241 of 1958 on the file of the Additional District Court, Parur, but without

success.

4. Subsequently it would appear that first plaintiff's right was transferred to the second plaintiff and the plaintiffs 1 and 2 jointly instituted O S No. 269 of 1959 purporting it to be a suit under S.53 of the Transfer of Property Act, impleading defendants 3 to 6, besides defendants I and 2. It was alleged that defendants 3 to 6 are impleaded, as they are understood to be the other creditors of the second defendant. The prayer in the suit was for a declaration that Ext. P-1 sale deed is vitiated by fraud to defeat the creditors of the second defendant and, therefore liable to be cancelled.

5. Defendants 1 and 2 contended that the suit is barred by res judicata by reason of the decree in A.S 241 of 1958 of the Additional District Court, Parur and also that it is barred by limitation. Defendants 3 to 5 filed statement stating that no amount is due to them from the second defendant. The 6th defendant, the State of Kerala represented by the Chief Secretary to Government, filed a statement stating that the amount due to the Government was already paid.

6. The trial court tried issues 3 and 4, which respectively related to the questions of res judicata and limitation, as preliminary issues and found that the suit is barred by res judicata as well as limitation and, therefore, dismissed the suit without going into the other questions, though as many as 17 issues were raised in the suit. Aggrieved by the decision of the trial court, the plaintiffs took up the matter in appeal in A.S. No. 144 of 1964 on the file of the Additional District Court, Parur. The learned District Judge also held that the suit is barred by limitation, holding that the proper article applicable is Art.11, not Art.120, of the Limitation Act. The first appellate court did not consider other questions; in Para.5 of the judgment the only question for consideration is set out to be "whether i