The main legal point established in the judgment is that in representative suits, parties not on the record are not personally bound by the decree unless they are actually impleaded as parties to the action.

Krishnaswami Ayyangar, J.

1. This is an appeal from the judgment of the Subordinate Judge of Coimbatore dismissing in effect the suit (O.S. No. 10 of 1940) instituted by the appellant for setting aside an order allowing the claim of the first respondent to certain properties which had been attached before judgment by the appellant in an earlier suit. That suit (O.S. No. 98 of 1938) had been instituted by the appellant to recover a sum of Rs. 7,800 due on hundies executed by one Babu Sahib and his three sons. The properties were attached before judgment 0n 8th and 9th April, 1938, and later on 4th August, 1938, the appellant obtained his decree.

2. Babu Sahib died in December, 1937. His three sons are respondents 2 to 4.The first respondent is the wife of his eldest son Mydeen Batcha Sahib who is the second respondent here. Her claim, to the property is based on a deed of gift executed by Babu Sahib in her favour on. 27th September, 1937. The properties gifted were of considerable value though their value is stated in the deed to be Rs. 9,000 only which there is reason to believe was an under-estimate., The attachment was raised by an order of the executing Court dated 15th December, 1938 and the suit out of which this appeal has arisen was filed on 15th December, 1939, which was the last day of limitation under Article 11(1) of the Indian Limitation Act.

3. Two questions were raised in the Court below, namely, (1,) that the deed of gift which has been marked as Ex. II was executed with intent to defraud creditors, and (2) that the suit was barred by limitation. The learned Subordinate Judge was of opinion that the plea of limitation was good; but he declined to give effect to it by reason of all order of amendment which he had earlier made during the course of the suit. On the question whether the deed of gift was void as having been executed to defraud creditors he has recorded, a finding which means that his answer was in the negative.

4. After discussing the evidence and finding that the gift was made with intent to defraud creditors his Lordship proceeded

5. We now pass on to the question of limitation which arises in this way The suit as originally framed was merely one to,set aside the summary order made under Order 21, Rule 63, Civil Procedure Code and prayed for that order being set aside and the suit properties declared liable to be attached and sold in execution of the decree in O.S. No. 98 of 1938. The material allegation in the plaint was that the alleged gift (Ex. II) was made at a time when Babu Sahib and his sons were heavily indebted, with the sole object of cheating the appellant and other creditors and placing the properties beyond their reach. Thus the suit was in substance a suit under Section 53 of the Transfer of Property Act and should have been instituted on behalf of or for the benefit of all the creditors and not merely on behalf of the plaintiff alone. The provisions of Order 1, Rule 8, Civil Procedure Code, were not invoked. The permission of the Court to sue on, behalf of or for the benefit of all the creditors was not asked. The suit was thus wrongly framed. In these circumstances there was no alternative for the plaintiff but to proceed under Order 1, Rule 8. Otherwise the suit was liable to be summarily dismissed (vide Madina Bibi v. Ismail Durga Association AIR1940Mad789. When objection to the frame of the suit was taken in the written statement, the appellant applied to the Court for an amendment of the plaint so as to bring it in conformity with law and the amendment was ordered and carried out on 22nd August, 1940. If this date is taken to be the crucial date the suit would be barred by limitation.

6. The contention of the respondent here, as, in the Court below, is that the amendment had the effect of introducing new plaintiffs into the suit because there was a change of capacity on the part of the appellant. Whereas originally he had instituted the suit for himself as an individual he be