(31) We shall first refer to the purpose of the amendment. In decisions rendered prior to the amendment, there were a large number in which it was held, following certain English cases decided with reference to-13 Eliz., Ch. 5, on which S. 53(1) was based, that suits by creditors for avoiding a transfer under S. 53(1) was a representative action. To that general rule however, an exception was recognised in a number of' decisions when the suit was to set aside a summary order under O. 21. R. 63, and was brought by an attaching decree-holder against whom an adverse order had been made in the summary proceedings, it being held that such a suit need not be in a representative capacity. The decisions on this point were however not uniform. It was merely to have a uniform rule and to avoid these conflicting decisions that the third paragraph was inserted so that after the amendment the rule that a suit by a creditor should be brought in a representative capacity would apply as much to a suit set aside a summary order under O. 21, R. 63, as to other suits. It was not suggested that there was anything in the terms of the amended S. 53(1) which referred to a defence to a suit and, in fact, learned Counsel did not contend that if a defence under S. 53(1) could be raised by defeated attaching-creditor such a defence had to be in a representative capacity, and we consider that learned Counsel was correct in this submission. From a provision as to how a plaintiff, if he filed a suit, should frame it, we can see no logical process by which it could be held that a defendant cannot impugn the validity of the sale which is voidable at his instance. We have, therefore, no hesitation in rejecting the legal point urged on behalf of the appellant."
