# Guljar Ahmed v. Smt. Akhtari

- **Citation:** (2012) 2 ILRA 805
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-24
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guljar-ahmed-v-smt-akhtari-42160
- **Pages:** 3

## Headnote

Code of Civil Procedure-Section 100Malicious
Prosecution-suit
for
cancellation of sale deed executed in
favor of his own mother-to defraud
creditors-dismissed
by
Trail
Courtdirection
to
lodge
FIR-Lower
1st
appellate Court-dismissed the Appealargument that in view of Section 53 of
Transfer of property Act such sale deed
can be canceled at instance of creditors
and not by plaintiff-Appeal dismissed
with cost of Rs. 25000/-for frivolous,
fraudulent
suit-payable
to
Bar
Association within 3 month.

Held: Para 7

Accordingly, second appeal is dismissed
on merit. However the directions given
by the courts below for issuing notice or
lodging FIR against plaintiff and his
counsel are quashed. However plaintiff is
saddled with the penalty of Rs.25,000/-
for instituting frivolous, fraudulent suit
and consuming time of the Court. This
amount shall be paid by him to the Bar
Association
of
Kairana,
District
Muzaffarnagar
within
three
months
failing which the Collector shall recover
the same from him like arrears of land
revenue and pay to the Bar Association.
The Bar Association shall utilise the
amount only for purchasing the Books.
Case law discussed:
AIR 1946 PC 177; AIR 1954 Nagpur 129(DB);
AIR 1939 Madras 894; AIR 1961 Punjab 423;
AIR 1954 Madras 173; AIR 1963 Mysore 257;
AIR 1935 All. 529 (FB)

## Text

2 All] Guljar Ahmed V. Smt. Akhtari
805

39. The writ petition succeeds and is
allowed with cost of Rs.5,000/- payable by
the respondents, respondent no. 3 in
particular, within a period of one month.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Second Appeal No. - 214 of 2012

Guljar Ahmed

 ...Petitioner
Versus
Smt. Akhtari

 ...Respondents

Counsel for the Appellant:
Sri Nipun Singh

Counsel for the Respondents:
....................................

Code of Civil Procedure-Section 100Malicious
Prosecution-suit
for
cancellation of sale deed executed in
favor of his own mother-to defraud
creditors-dismissed
by
Trail
Courtdirection
to
lodge
FIR-Lower
1st
appellate Court-dismissed the Appealargument that in view of Section 53 of
Transfer of property Act such sale deed
can be canceled at instance of creditors
and not by plaintiff-Appeal dismissed
with cost of Rs. 25000/-for frivolous,
fraudulent
suit-payable
to
Bar
Association within 3 month.

Held: Para 7

Accordingly, second appeal is dismissed
on merit. However the directions given
by the courts below for issuing notice or
lodging FIR against plaintiff and his
counsel are quashed. However plaintiff is
saddled with the penalty of Rs.25,000/-
for instituting frivolous, fraudulent suit
and consuming time of the Court. This
amount shall be paid by him to the Bar
Association
of
Kairana,
District
Muzaffarnagar
within
three
months
failing which the Collector shall recover
the same from him like arrears of land
revenue and pay to the Bar Association.
The Bar Association shall utilise the
amount only for purchasing the Books.
Case law discussed:
AIR 1946 PC 177; AIR 1954 Nagpur 129(DB);
AIR 1939 Madras 894; AIR 1961 Punjab 423;
AIR 1954 Madras 173; AIR 1963 Mysore 257;
AIR 1935 All. 529 (FB)

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
appellant at the admission stage.

2. This second appeal arises out of
O.S. No.177 of 2005 filed by appellant
against his mother defendant respondent
for declaring the sale deed dated
20.07.2002 executed by him in favour of
his mother/ defendant as void on the
ground that it was executed to defraud
the creditors by the plaintiff. Even the
defendant did not appear but the suit was
dismissed ex parte on 15.07.2006 by
Civil Judge, Senior Division, Kairana,
District Muzaffarnagar. Not only the suit
was dismissed but show cause notice was
also issued to the plaintiff and his
learned counsel to show cause within
seven days as to why FIR should not be
lodged against them. Against the said
decree, plaintiff appellant filed Civil
Appeal No.30 of 2006, which was
dismissed
by
A.D.J.
Court
No.9,
Muzaffarnagar on 24.01.2012 hence this
Second Appeal. Plaintiff further stated in
the plaint that after execution of the sale
deed, he had cleared his debts.

3. According to the Section 53,
Transfer of Property Act:

"Every
transfer
of
immovable
property made with intent to defeat or
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
delay the creditors of the transferor shall
be voidable at the option of any creditor
so defeated or delayed."

4. Accordingly, the transfer made
by the plaintiff in favour of his mother
was not void on the ground mentioned in
the plaint but only voidable and that also
at the option of the creditor but not at the
option of the plaintiff himself. The Privy
Council in Zafrul Hasan vs. Farid UdDin AIR 1946 PC 177 has held that as
between the parties to such transfer, the
transfer cannot be avoided by either of
them. In AIR 1954 Nagpur 129 (DB) it
has been held that the effect of the
declaration under Section 53, T.P. Act
leaves the sale deed operative between
the parties thereto and does not amount
to cancelling or setting aside the same. In
AIR 1939 Madras 894, AIR 1961
Panjab 423 and AIR 1954 Madras 173
it has been held that "as between the
parties to such transfer, the transfer
stands subject only to the right of the
creditors to enforce their claim as if the
transfer has not been made. It has further
been held that the result of declaration
under Section 53 is only to render the
transfer inoperative as against creditors
and that too only to the extent necessary
to satisfy their claims and subject to their
claims, the transaction is valid and
enforceable. In AIR 1963 Mysore 257, it
has been held that if transfer is avoided
under Section 53 still transaction is not
wiped out but has no effect on creditors
defeated or delayed. In Mohammad
Taki Khan Vs. Jang Singh, AIR 1935
All. 529 (FB), it has been held that
where the fraud intended to be affected
has been carried out substantially the
court will not allow any party to allege
his own fraud in order to avoid his own
deed.

5. In view of the above authorities,
the suit was not maintainable and has
rightly been dismissed.

6. However, in my opinion, there
was no occasion to issue notice or direct
lodging of FIR against plaintiff or his
counsel.

7. Accordingly, second appeal is
dismissed
on
merit.
However
the
directions given by the courts below for
issuing notice or lodging FIR against
plaintiff and his counsel are quashed.
However plaintiff is saddled with the
penalty of Rs.25,000/- for instituting
frivolous, fraudulent suit and consuming
time of the Court. This amount shall be
paid by him to the Bar Association of
Kairana, District Muzaffarnagar within
three months failing which the Collector
shall recover the same from him like
arrears of land revenue and pay to the
Bar Association. The Bar Association
shall
utilise
the
amount only
for
purchasing the Books.

8. Office is directed to supply a
copy of this order free of cost to Shri
S.P.Mishra, learned standing counsel for
sending the same to the Collector,
Muzaffarnagar and President/Secretary
Bar
Association,
Mairana,
Muzaffarnagar. Office shall also send a
copy of this order to President/ Secretary
Bar
Association,
Kairana
District
Muzaffarnagar.
---------
2 All] Laxman and 9 others V. D.D.C., Gonda & 6 others
807
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.07.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Consolidation NO. 241 of 2006

Laxman & 9 Ors.

 ...Petitioner
Versus
D.D.C., Gonda & 6 Ors. ...Respondents

Counsel for the Petitioner:
Sri B.L.Mishra

Counsel for the Respondents:
C.S.C.
Sri B.R. Singh

U.P.
Consolidation
of
Holdings
ActSection
11-Appeal
with
Section
5
application-S.O.C. While condoning delay
decided appeal on merit and remanded
back for fresh consideration-interference
by D.D.C. under wrong assumption to
decide delay application first-thereafter
ought to have decide the appeal on
merit-held-wholly
misconceivedconsidering law laid down by Apex Court
in State of Bihar Vs Kamleshwar Prasda
Singh-question of limitation and meritboth can be considered simultaneously-it
can not be interfered-order passed by
D.D.C.-held-illegal-quashed.

Held: Para 17 and 18

So far as the power to condone the delay
conferred to the courts is concerned,
regard may be had to the judgment of
the Hon'ble Supreme Court in the case of
State
of
Bihar
and
others
Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
(Supra) wherein, it has inter-alia been
observed that the power to condone the
delay in approaching the court has been
conferred to do substantial justice to the
parties by disposing the matter on
merits.

Looking into over all circumstances of
the case and the general legal principles
regarding condonation of delay laid
down by the Hon'ble Apex Court in the
case of State of Bihar and others Versus
Kameshwar Prasad Singh and another
with
other
connected
Civil
Appeals
(Supra)
and
also
in
the
case
of
N.Balakrishnan Versus M.Krishnamurthy
(Supra), this Court is of the definite view
that the order passed by the Assistant
Settlement Officer Consolidation, Gonda
could not have been interferred with by
the
learned
Deputy
Director
of
Consolidation, Gonda.
Case law discussed:
2006 (101) RD 69; 2003 (94) RD 186; 2001
(92) RD 596; 1998 (89) RD 607 (SC); (2000) 9
SCC 94; 1996 (87) RD 465; 1990 RD 162;
(2003) SCC 257; (2002) 1 SCC 633

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri B.L.Mishra, learned
counsel for the petitioners and Shri
B.R.Singh, learned counsel appearing for
the respondents and have perused the
record.

2. The facts of the case as culled from
the pleadings available on record are that
the land in dispute was recorded in the
name of the predecessor-in-interest of the
petitioners, Arjun in the basic year khatauni.
On commencement of the consolidation
operations by issuance of Notification under
Section 4(2) of the U.P.Consolidation of
Holdings Act (hereinafter to be referred as "
Act" ), objections were filed by the
respondents under Section 9 of the Act
claiming their right over the land in dispute.
The case under Section 9-A (2) of the Act
was allegedly decided by the Consolidation
Officer by means of order dated 11.11.1979.