DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS appeal is filed against judgment and decree dated 10-3-1992 in A. S. No. 69 of 1985 on the file of 1 st Additional Subordinate judge at Kakinada confirming order and decree dated 11-7-1985 in E. A. No. 879 of 1981 in E. P. No. 491 of 1980 in O. S. No. 594 of 1980 on the file of III Additional District munsif, Kakinada. During the pendency of this appeal, first respondent died and third respondent was brought on record as legal representative of deceased-first respondent. ( 2 ) THE appellant is the claimant. The first respondent - plaintiff filed a money suit and obtained a money decree against second respondent. Subsequently she filed an execution petition and attached plaint schedule property on 14-1-1981. The appellant filed a claim application in e. A. No. 879 of 1981 requesting the executing court to raise the attachment over plaint schedule property. He pleaded that he purchased the plaint schedule property under an agreement of sale dated 9-4-1979 from the second respondent judgment debtor and subsequently he obtained a regular registered sale deed Ex. A-1 on 24-7-1980. According to him the plaint schedule property belongs to him and it is not liable to be attached and sold in execution of any decree obtained against the second respondent judgment debtor. Claimant is none other than the brother of the judgment debtor - second respondent. According to the decree holder - plaintiff the sale transaction Ex. A-1 is a sham and nominal transaction and the property belongs to the judgment debtor himself. She resisted the claim application filed by appellant claimant. Both parties adduced oral and documentary evidence before the executing Court. The Executing Court construed the sale transaction covered by ex. A-1 as a sham and collusive transaction and refused to raise the attachment in question. It had also taken into consideration the fact that the agreement of sale dated 9-4-1979 was not produced by the claimant. It is to be stated that there is a reference in ex. A-1 sale deed to the agreement of sale dated 9-4-1979. The fact remains that the agreement of sale was not produced before the Executing Court during the course of inquiry in the claim application. The executing Court dismissed the claim application by order dated 11-7-1985. It is to be stated that there is a reference in ex. A-1 sale deed to the agreement of sale dated 9-4-1979. The fact remains that the agreement of sale was not produced before the Executing Court during the course of inquiry in the claim application. The executing Court dismissed the claim application by order dated 11-7-1985. Aggrieved by that order, the claimant preferred an appeal before 1st Additional subordinate Judge at Kakinada. The lower appellate court concurred with all the findings given by the Executing Court and dismissed the appeal. Aggrieved thereby, the claimant preferred the present appeal. ( 3 ) AT the time of admission of this appeal, the learned admission Judge treated the following points formulated in the memorandum of grounds of appeal as substantial questions of law that arise for consideration in the present appeal. (1) Whether on the facts and in the circumstances of the case, a transaction of sale which had already taken place prior to the attachment or institution of the suit can be said to have been made with an intention to defraud the creditors or to delay the execution of the decree unless the decree holder clearly established by positive evidence that the sale deed was brought about to defraud the creditor? (2) Whether a sale deed executed and registered in pursuance of an agreement of sale long prior to the institution of the suit will not prevail over attachment effected in execution of decree obtained in a suit long after the agreement of sale? (3) Whether on the facts and in the circumstances of the case, the burden of establishing the circumstances leading to the invalidity of a registered sale deed was wrongly cast in the instant case? ( 4 ) POINTS: The plaint schedule property was attached on 14-1-1981. The said attachment is after execution of a regular sale deed Ex. A-1 by the judgment debtor in favour of the claimant on 24-7-1980 conveying the title in the said property to claimant. According to the two courts below the sale transaction evidenced by Ex. A-1 sale deed is a sham and nominal transaction and in spite of Ex. A-1 the judgment debtor was the owner of the plaint schedule property. Therefore, according to the two courts below, the transaction covered by ex. A-1 sale deed is a fraudulent transfer. According to the two courts below the sale transaction evidenced by Ex. A-1 sale deed is a sham and nominal transaction and in spite of Ex. A-1 the judgment debtor was the owner of the plaint schedule property. Therefore, according to the two courts below, the transaction covered by ex. A-1 sale deed is a fraudulent transfer. The above reasoning of the two courts below attracts the provision in Section 53 of transfer of Property Act, 1882. Section 53 of transfer of Property Act reads as follows:53. Fraudulent transfer: (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decreeholder whether he has or has not applied for execution of his decree) to avoid transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors. (2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made. ( 5 ) A reading of the above provision makes it clear that the creditor affected by fraudulent transfer is to file a suit to avoid the transfer on the ground that it has been made with intent to defeat or delay the creditors of transferors. He has to avoid necessarily the transaction by filing a regular suit. It is one option provided by law to the aggrieved creditors. ( 6 ) THERE is one another remedy. Section 6 of the Provincial Insolvency Act defines acts of insolvency. If a debtor makes a transfer of his property or any part thereof with intent to defeat or delay his creditors, he would be committing one of the acts of insolvency enumerated in the above provision. ( 6 ) THERE is one another remedy. Section 6 of the Provincial Insolvency Act defines acts of insolvency. If a debtor makes a transfer of his property or any part thereof with intent to defeat or delay his creditors, he would be committing one of the acts of insolvency enumerated in the above provision. If an act of insolvency is committed, the remedy of the affected creditor is to present a petition against the debtor within a period of three months from the date of the debtor committing an act of insolvency to get the order of adjudication of debtor as an insolvent. These two remedies are available to the affected creditor. In a claim application filed by the purchaser the court is not entitled to consider and decide whether the transaction is a collusive, fraudulent or sham transaction and whether it is intended to defeat or delay the creditor. Such a question falls for consideration either in a proceeding launched under the provisions of Provincial Insolvency Act or in a suit filed under Section 53 of Transfer of property Act or in Provincial Insolvency Act are to be instituted in a representative capacity and they are intended to benefit not a particular creditor but to benefit all the creditors of the transferor. It is thus clear that both the courts below committed a serious error in considering in a claim application the question whether the transaction covered by ex. A-1 is a collusive transaction, etc. , and on the basis of the findings recorded on that issue dismissing the claim application. ( 7 ) THERE is a direct decision of Apex court reported in Hamda Ammal v. Avadiappa Pathar and others. In that case judgment debtors sold the suit property to a third party by a sale deed dated 9-9-1970. The sale deed was registered on 26-10-1970. After execution of the sale deed and before its registration, the decree holder attached the property on 17-9-1970. After considering the provision of attachment in order 38 Rule 5 C. P. C. , the Apex Court held that the said provision would not apply where the sale deed has already been executed by the defendant in favour of a third person. After considering the provision of attachment in order 38 Rule 5 C. P. C. , the Apex Court held that the said provision would not apply where the sale deed has already been executed by the defendant in favour of a third person. The Apex Court further held that a transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made with intention to obstruct or delay the execution of any decree. The Apex Court further observed that it would be a different case altogether if a creditor wants to assail such transfer by sale under Section 53 of Transfer of Property Act, 1882, on the ground of a fraudulent transfer. It further held that such suit would be decided on totally different considerations in accordance with the provisions of Section 53 of the Act. In view of the above decision of the Apex Court, it is very clear that the two courts below committed a serious error of law in dismissing the claim application. It is very clear that the judgments of the two courts below are liable to be set aside. ( 8 ) IN the result, appeal is allowed with costs. The judgment and decree in a. S. No. 69 of 1985 confirming the order in claim application in E. A. No. 879 of 1981 are set aside. Consequently the said appeal is allowed and consequently the claim application in E. A. No. 879 of 1981 is allowed with costs.