Filing of separate suit for adjudication of title and interest not necessary.

This appeal is filed by the decree-holder against the judgment of the learned Subordinate Judge, Cuddalore, reversing the judgment and decree passed by the District Munsif, Cuddalore.

2. The facts, which are necessary for the disposal of this appeal, can briefly be stated as follows : - The appellant herein obtained a money decree against one Haribabu on the basis of a promissory note dt. 9-2-1976 for Rs. 6000/-. She filed the suit on 6-7-1978 and attached the properties, which are the subject-matter of this appeal by way of attachment before judgment on 12-9-1978. Thereafter, she got a decree on 19-11-1979, and proceeded against the properties for realising the decree amount by way of execution. At that stage, the respondent herein, who is the claimant, filed a claim petition under O.21, R.58, C.P.C. to raise the attachment contending that he purchased the property from the judgment-debtor on 11-6-1978 for Rs. 10,000 long prior to the date of attachment and as such the attachment is to be raised. The said application was resisted by the appellant herein, who is the respondent before the executing court, contending that at the time of the alleged purchase, moratorium was in force and as such she could not file a suit to proceed against the property of the judgment-debtor because of the said moratorium by virtue of the Tamil Nadu Agricultural Relief Act 13 of 1976. Since the transfer of the immovable property was effected during the period of moratorium, which was in force from 15-1-1976 to 15-7-1978, by the debtor, it should be presumed to have been effected with a view to defeat and delay the creditors until the contrary is proved.

3. In support of the contention, the claimant examined himself as P.W. 1 and three witnesses were examined and Exs.A. 1 to R.17 were marked. On the side of the appellant herein, R.W. 1 was examined and Exs.B.1 to B.3 were marked. The executing court dismissed the claim application holding that in view of S.6 of Act 13 of 1976, Ex.A.15 the sale deed in favour of the respondent claimant was brought into existence only with a view to defeat and delay the creditors of the judgment-debtor. Aggrieved by the same, the respondent herein preferred an appeal in C.M.A. No. 106 of 1981 before the Subordinate Judge, Cuddalore, and the learned Judge allowed the appeal. Aggrieved by the same, this civil miscellaneous second appeal is filed, on the following substantial questions of law : -

(1) Is the learned Subordinate Judge right in holding that the appellant cannot question the validity of the sale in favour of the respondent in a proceeding under O.21, R.58, C.P.C. as it is not a suit when the amendment Act 104 of 1976 made it clear that the proceedings under O.21, R.58, C.P.C. is in the nature of a suit?

(2) When the sale effected in favour of third party was in contravention of the provisions of Tamil Nadu Act 15 of 1976, is the learned Subordinate Judge, right in holding that those provisions do not affect the third party when admittedly the sale took place between the period mentioned in the said Act?

4. Learned counsel for the appellant Mrs. Chitra Sampath mainly submitted that the learned appellate Judge is thoroughly wrong in holding that the validity of the sale in favour of the claimant in contravention of the provisions of Act 13 of 1976 cannot be questioned in the execution proceedings and that the remedy of the decree-holder is to file a separate suit, relying on the decision of this Court reported in Rukkumani Ammal v. Kamachi Ammal, 1963 AIR(Mad) 450. According to the learned counsel, the said decision was rendered prior to the amended Act 104 of 1976 wherein it is provided that the claim application filed under O.21, R.58, C.P.C. is to be tried as a suit and not in summary way. Further, the learned counsel submitted that even in spite of questioning the validity of the sale, on the principle of S. 53 of the T. P. Act it can be raised by way of defence to the claim application itself in v