JUDGMENT

Dunkley, J - This appeal has unfortunately been heard ex parte because the points raised are of considerable importance. It arises out of a suit brought by the plaintiff-respondent against the defendant-appellant, in the Sub-divisional Court of Kyonpyaw, under the provisions of Order 21, Rule 63, Civil P.C. The respondent obtained a decree in the Sub-divisional Court, Kyonpyaw, against two persons, named U Tok and Daw Shin, and in execution of that decree he attached certain moveable and immoveable properties. The appellant then laid a claim, under the provisions of Rule 58, Order 21, on the ground that the properties belonged to him, and his claim was successful and the attachment was removed. He based his claim upon two registered deeds whereby the attached properties had been transferred to him by U Tok and Daw Shin. The respondent thereupon filed a suit under the provisions of Order 21, Rule 63, alleging that the registered deeds were sham transactions executed without any consideration in order to defeat and delay the claims of the creditors of U Tok, and Daw Shin. In para. 1 of his plaint he said

that the plaintiff files this suit for his benefit as well as for the benefit of all the other creditors (if any) of U Tok and Daw Shin, his judgment-debtors.

2. Two points have been raised before me in this second appeal. It has in the first place been argued that as the suit sought to avoid certain transfers as having been made with intent to defeat or delay the creditors of the transferor, the provisions of Section 53, T.P. Act, as substituted by the Amending Act of 1929 were applicable, that therefore the judgment-debtors were necessary parties to the suit and the suit must be brought as a representative suit, that the permission of the Court had to be obtained, and that the provisions of Rule 8, Order 1, Civil P.C., were applicable to the suit. I am of opinion that this contention must be sustained. In my judgment in Chidambram Chettyar v. R.M.A.R.S. Firm 1934 Rang. 402, I have held that, when a suit is brought under the provisions of Order 21, Rule 63, by an attaching creditor to establish his right to attach and bring to sale certain property, and in order that he may succeed it is necessary to avoid a transfer of the property, on the ground that the transfer has been made with intent to defeat or delay the creditors of the transferor, the suit must be brought in the form of a representative suit, on behalf of or for the benefit of all the creditors of the transferor, and the provisions of Order 1, Rule 8, Civil P.C., will be applicable, and the transferee and the judgment-debtors, as transferors, will be necessary defendants in such a suit. The plaint in the present suit was properly framed as on behalf of or for the benefit of all the creditors of the judgment-debtors but the judgment-debtors were not joined as defendants in the suit, nor were the provisions of Order 1, Rule 8, observed. It has been held by a Full Bench of the Allahabad High Court in the case of Shiam Lal v. Mt. Lalli 1922 All. 16 that:

Order 1, Rule 8, Civil P.C. (1908), requires that when a plaintiff brings a suit in a representative capacity he must first obtain the leave of the Court to bring such a suit, and when the leave is granted, the Court shall issue notice that the suit has been instituted; the provisions of the section as to the issue of notice are peremptory and the Court is bound to issue notice as required by the rule. If however the Court omits to issue notice, the result is not necessarily that the entire suit is vitiated and must be dismissed. The irregularity may be cured in appeal by the appellate Court remanding the case to the Court of first instance in order that the omission may be repaired.

3. The second point which has been raised is that as Section 53, T.P., Act, is applicable the effect of the decree is to avoid the transfers in question, and therefore a suit for a bare declaration does not lie but an additional prayer f