case of Abdul Kader Vs. Ali Mia & Ors., Vol.XVI, The Calcutta Weekly Notes 717 in which it has been held that even in a suit filed by a claimant who had purchased an attached property, the JC would be entitled to show the fraudulent nature of the transfer as his defence so as to content that the transfer was not binding against him. This was held under Section 278 of the CPC, 1882 (even prior to coming into force of the CPC 1908). The interesting observation in that case was the reason for upholding such a defence – that such a creditor who attaches the property is more than a creditor; he is “the Judgment Creditor.” It is observed that he could bring an independent suit by himself and hence he can do as defendant what he could have done as the Plaintiff. Considering his right U/s.53 of the Transfer of Property Act it is held that, therefore, the defendant in such a suit had every right to say that the title claimed by the transferee was upon fraud and, therefore, ineffectual as against him. 14. In the case of Subramanian Ayyar V. Muthia Chettiar, ILR XLI Madras 612, the Full Bench of three Judges of the Madras High Court disagreed with the ruling in the case of Abdul Kader (Supra) and, placing reliance upon the earlier Division Bench Judgment of the Madras High Court in the case of Palaniandi Chetti V. Appavu Chettiar, 1916 30 MLJ, 565 held that the sale which is alleged to be fraudulently sought to be avoided U/s.53 of the Transfer of Property Act can be so avoided only by filing a suit instituted for the purpose. This was upon the analogy that such a transfer is not sham transaction but only a fraudulent one to defeat and delay the creditors claim hence the creditor can avoid such a transaction as not binding upon him. Such avoidance can be only by filing a suit for that purpose.
