JUGALKISHORE SARAF Vs. RAW COTTON CO LTD

JUDGEMENT

(1.) The question that arises in this appeal is whether an equitable assignee of a decree passed against a debtor can maintain an insolvency notice against him.

(2.) The decree was passed in favour of Habib & Sons on 15-12-1949, and there was an assignment in favour of the respondents on 7-2-1949. The respondents have obtained leave under Order 21, Rule 16, as the assignee of the decree to execute the decree. Therefore, by reason of that leave they are in the same position as the decree-holders, viz.; Habib & Sons, and "after they had obtained leave the respondents took out an insolvency notice on 17-12-1953. The judgment-debtor, the appellant, took out a notice of motion to set aside the insolvency notice. Mr. Justice Coyajee dismissed that notice of motion and this appeal is against that order.

(3.) Now, what is urged by Mr. Banaji is that the creditor contemplated in Section 9 (1), Presidency-towns Insolvency Act, as amended by Bombay Act 15 of 1939 is only a decree-holder and not an assignee of a decree, whether the assignee is a legal or an equitable assignee. "Creditor" is de-fined in the Insolvency Act and the definition is an inclusive and not an exhaustive definition, and the definition is that a creditor includes a decree-holder, and Mr. Banaji has been at pains to emphasise the fact that the Legislature has not included an assignee of a decree-holder in the definition of "creditor". But as we just pointed out, the definition of a "creditor" is much wider than a mere decree-holder, and when we turn to Section 9 it is clear and it is not disputed that for the purposes of Section 9(a) to (h) the expression "creditor" used in that section is used in its wider connotation and would include not only a decree-holder but also an assignee of a decree-holder. The Indian Act only dealt with acts of Insolvency set out in Clauses (a) to (h) of Section 9. The Bombay Legislature then included a further act of insolvency in Section 9 and that was by Act 15 Of 1939. That Act was subsequently amended by Act 51 of 1948 and the act of insolvency was: