A creditor who has been defrauded, defeated or delayed can exercise the option given him by Section 53 of the Transfer of Property Act of avoiding the conveyance otherwise than by the institution of a suit for that purpose.

Spencer, J.

1. The plaintiff claims the suit properties by virtue of a gift in his favour, dated 19th November 1914. The second defendant is a creditor of the donor, the first defendant, who obtained a decree and attached the properties in execution. The plaintiff made a claim under Order XXI, Rule 58, Civil Procedure Code. It was; dismissed and this suit is brought to set aside the summary order and to obtain a declaration that the property is not liable to be attached.

2. The trial of the plaintiffs suit raised the question of law, whether in is open to an attaching decree-holder to plead in defence against the alienee suit, that the alienation is a fraudulent one intended to defeat or delay the alienors creditors. This question was answered in the negative in Subramania Ayyar v. Muthia Chettiar 43 Ind. Cas. 651 : 41 M. 6l2 : 6 L.W. 750 : 33 M.L.J. 705, which is a Full Bench decision. We have decided to refer the same question of law once more to a Full Bench. It need hardly be said that we should not have ventured to take this extreme course if we were not fully convinced that the law, as laid down by that Full Bench seriously requires reconsideration.

3. In order to justify this reference it is necessary that I should, as briefly as possible, enumerate the reasons which have impelled us to make it:

1. There appears to be an increasing sense of hesitation is the minds of both Bench and Bar in regarding Subramania Ayyar v. Muthia Chettiar 43 Ind. Cas. 651 : 41 M. 612 : 6 L.W. 750 : 33 M.L.J. 705 as representing sound law;

2. Other High Courts have put a different construction on Section 53 of the Transfer of Property Act;

3. In a case that has since some before the Privy Council a plea of this description was allowed to be raised in defence of the suit;

4. There are no words in Section 53 which make it imperative that a person defrauded, defeated or delayed should put forward his claim to have the transfer avoided in a regular suit and not otherwise, and

5. There are independent reasons for doubting the correctness of the conclusion of the learned Judges who decided Palaniandi Chetti v. Appavu Chettiar 34. Ind. Cas. 778 : 30 M.L.J. 565 : 19 M.L.T. 390 upon which the Full Bench case in Subramania Ayyar v. Muthia Chettiar 43 Ind. Cas. 651 : 41 M. 612 : 6 L.W. 750 : 33 M.L.J. 705 was based.

4. I will now proceed to amplify the above reasons. On the first point I will merely refer to the opinions expressed by Abdur Rahim, J., in Cheruthazhath Abdulla Haji v. Cheriyandi Ibrayan Kutti 50 Ind. Cas. 959 at p 962; by Krishnan, J, in Kottarathil Puthiyapurayil Pokker v. Balathil Parkum Chandrankandi Kunhamad 51 Ind. Cas. 714 : 86 M.L.J. 231 at p. 237. 25 M.L.T. 47 : (1919) M.W.N. 39 : 9 L.W. 138 : 42 M. 148 and by Sadasiva Aiyar and Napier, JJ., in their reference to the Full Bench on the former occasion at page 613 Page of 41 M.--[Ed] of Subramania Ayyar v. Muthia Chettiar 43 Ind. Cas. 651 : 41 M. 612 : 6 L.W. 750 : 33 M.L.J. 705. I will only add that I share in the doubts expressed by the above-named learned Judges.

5. Next Abdul Kader v. Ali Meah 14 Ind. Cas. 715 : 15 C.L.J. 649 : 16 C.W.N. 717 is a direct decision to the contrary on the point that a creditor who has obtained a decree and taken out execution is competent to raise a plea under Section 53 of the Transfer of Property Act that the alienation made by his debtor is voidable and should be avoided, and the learned Judges quote the English case of Clough v. London and North Western Railway Co. (1872) 7 Ex. 26 : 41 L.J. Ex. 17 : 25 L.T. 708 20 W.R. 189. and two other decisions of the same Court in support of this proposition. The case of Clough v. London and North Western Railway Co. (1872) 7 Ex. 26 : 41 L.J. Ex. 17 : 25 L.T. 708 20 W.R. 189. is an authority for allowing a voidable transaction to be avoided on the ground of fraud by any unequivocal act including a statement in a plea by defendants in an action. This Calcutta case was considered in the Full Bench case in Subram