A suit for a declaration that a sale in execution of a decree is fraudulent and collusive is maintainable even if it does not fall within the ambit of S. 53 of the Transfer of Property Act or S. 42 of the Specific Relief Act.

P. V. RAJAMANNAR, C. J. :- Two points were urged before us by Mr. G.R. Jagadesan, learned counsel for the appellant who was the second defendant in a suit brought by the first respondent in the court of the Subordinate Judge, Vellore, O.S. No. 96 of 1948. That suit was filed in a representative character on behalf of a body of creditors of four persons who were members of a joint Hindu family. The plaintiff himself was the decree-holder in O.S. No. 42 of 1937.

There were several other decrees in favour of the other creditors. Two of the debtors were adjudged as insolvents in 1936. When attempts were made by certain of the decree-holders to bring certain properties to sale in execution of that decree it was found that the properties had been sold in execution of a decree in another suit, O. S. No. 67 of 1934, which had been obtained by one Narayana Nadar against the same debtors.

That sale was alleged to have taken place on 25-4-1947, and the same was confirmed in June 1947. The plaintiff alleged in the present suit that the decree in O.S. No. 67 of 1934 in which the properties had been sold and purchased by the second defendant, the appellant before us, and the execution proceedings in that decree were fraudulent and collusive and no title really passed to the auction-purchaser in that sale.

He prayed for a declaration that the proceedings in execution of the decree in O.S. No. 67 of 1934 upto and including the sale therein on 25-4-1947 and confirmation on 27-6-1947 and the possession proceedings were all void and a nullity on account of fraud and collusion and that the real as well as the beneficial interest in the properties continued with the owners, that is, the debtors. The plaintiff made the official receiver, North Arcot, party defendant.

2. Neither the Court in which the suit was filed nor the appellate court, the District Court of North Arcot dealt with the merits of the suit. Both the courts dismissed the suit on the ground that it was not maintainable on two grounds, viz., (1) that the suit was not maintainable under S. 53 of the Transfer of Property Act, and that there was no other provision under which the suit could be maintained, and (2) that the suit was not mantainable because leave of the insolvency Court had not been obtained for its institution under S. 28(2) of the Provincial Insolvency Act.

The plaintiff filed a second appeal to this court which was heard and disposed of by Ramaswami Gounder, J. in S.A. No. 781 of 1954. He disagreed with the courts below on both the points and held that the suit was maintainable and remanded the suit to the trial court for disposal on merits. He, however, granted leave to appeal and hence this Letters Patent Appeal by the second defendant, auction-purchaser in the sale in execution of the decree in O.S. No. 67 of 1934.

Learned counsel for the appellant once again pressed before us both the grounds. So far as the first ground is concerned it was conceded before Ramaswami Gounder, J. and very properly, that S. 53 of the Transfer of Property Act cannot in terms apply to the case. The learned Judge proceeded on that basis, but held that apart from the provisions of S. 53 of the Transfer of Property Act, the suit was maintainable and he relied on a ruling of a Division Bench of this Court reported in Ramanathan v. Unnamalai, ILR (1943) Mad 47 : (AIR 1942 Mad 632).

Undoubtedly that ruling directly applies to this case. The only material difference, so far as the facts are concerned, is that in that case the properties had been attached but in the present case there has been no such attachment by the plaintiff but this difference would not in our opinion make that decision any the less applicable. The learned Judges, it may be observed, did not hold that the suit was maintainable under S. 42 of the Specific Relief Act.

Indeed we find no reference to this provision in the judgment. It has been held over and over again that S. 42 of the Specific Relief Act is not exhaustive of th