R.S.A. No. 2250 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2250 of 2009 (O&M) Date of decision: 29.05.2009 Gurnam Singh ....appellant versus Naranjan Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. D.S. Pheruman, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 29.1.205 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant, has been ordered to be dismissed against respondents No. 2 to 10, while suit against defendant No. 1, has been decreed. The plaintiff/appellant brought a suit against Babu Singh son of Zora Singh defendant No. 1 for recovery of a sum of Rs.1,10,000/- on the pleadings that the plaintiff/appellant had advanced a loan to Babu Singh against pronote and receipt. Babu Singh has not been impleaded as party in this appeal. The defendant/respondents were impleaded as party, being vendees from Babu Singh, of his immovable property. The case set up by the R.S.A. No. 2250 of 2009 (O&M) -2- plaintiff/appellant was, that the sale in their favour was fraudulent to defeat the decree, likely to be passed against Sh. Babu Singh. The learned Courts below have recorded a concurrent finding of fact, that the sale deed in favour of the respondents was executed prior to filing of the suit, and further that the sale was for consideration, therefore, suit qua challenge to the sale was ordered to be dismissed, while suit for recovery was decreed against Sh. Babu Singh. In appeal, the findings recorded by the learned trial Court stand affirmed. Mr. D.S. Pheruman, the learned counsel appearing on behalf of the appellant, contends that the appeal raises the following substantial questions of law: - “1. Whether the sale deeds executed qua whole of the property, after taking loan is null and void being violative of Section 53 of the Transfer of Property Act? 2. Whether the learned Courts below committed an error in holding the respondents herein to be bona fide purchasers for consideration?” In support of the substantial question of law, the learned counsel for the appellant contends, that once it was proved on record that the loan was advanced by the plaintiff/appellant to Sh. Babu Singh, the transfer made thereafter was to be treated to be fraudulent, as the object of transfer was to defraud the creditors, and to defeat the decree likely to be passed in favour of the plaintiff/appellant. It is also the contention of the learned counsel for the appellant, that if the sale was bona fide, in that event, it was incumbent R.S.A. No. 2250 of 2009 (O&M) -3- upon Sh. Babu Singh to have repaid the loan amount to the plaintiff/appellant, out of the sale consideration. In support of the contentions raised, the learned counsel for the appellant placed reliance on the judgment of this Court in Waryam Singh Vs. Rameshwar Dass and others, 1994(2) Civil Court Cases 203. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The sale deed was executed by Babu Singh much prior to filing of the suit, therefore, it cannot be held that respondents were not bona fide purchasers. Once it was found that the sale was for consideration and that the suit land was transferred prior to filing of the suit, it cannot be said that the object was to defraud the creditors, unless sale was in favour of close relatives. Even otherwise, except for the bald statement of the plaintiff/appellant, there is no other evidence to prove the plea of fraud, or that the transfer was fictitious transfer, with an intention to defeat the rights of the creditor. In view of the findings recorded by the learned Courts below, the judgment relied upon by the learned counsel for the appellant has no application. In the case of Waryam Singh Vs. Rameshwar Dass and others (supra), the property was transferred by way of consent decree by the debtor in favour of his wife, after taking loan on pronote, and that too just before filing of recovery suit, in that situation, it was held to be fraudulent transaction under Section 53 of the Transfer of Property Act. The respondents are not related to Babu Singh in any manner, being third party and further the sale in their favour, was much prior to filing of suit. R.S.A. No. 2250 of 2009 (O&M) -4- The appeal also deserves to be dismissed, as Babu Singh, who is alleged to have fraudulently transferred the property in favour of the respondents, was neither made party before the learned lower appellate Court nor before this Court, the appeal, therefore, is not competent, being bad for non-joinder of necessary parties. The appeal is accompanied by an application under Section 151 of the Code of Civil Procedure for condoning the delay of 1452 days in refiling the appeal. In view of the law laid down by this Court in Krishan Dev Dhiman Vs. Mahesh Bhatia and others, 2008(4) P.L.R. 23, the application is liable to be rejected, as the appellant has failed to show sufficient cause for condonation of delay of 1452 days in refiling the appeal. For the reasons stated above, the substantial questions of law raised are answered against the appellant, and the appeal is ordered to be dismissed on merits as well as on ground of limitation. (Vinod K. Sharma) Judge May 29, 2009 R.S.