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ishvar Timappa Hegde Vs. Devar Venkappa Shanbog and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom95
Appellantishvar Timappa Hegde
RespondentDevar Venkappa Shanbog and anr.
Excerpt:
.....not a judgment creditor--transfer of property act (iv of 1882), section 53--meaning of the word 'creditor'--statute 13 elis., clause 5. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law..........appears to us that this is a question to be determined by reference to the facts of each case. the decree is evidence--and valuable evidence--that he who complains is a creditor; but it is not the only evidence. the plaintiff's position may be proved otherwise, and proved as against the debtor, where, as here, he is a party to the suit. the absence, then, of a decree is not fatal: though it may have the result that the proof required of the creditor becomes more complicated, and the standard more exacting to prove the conditions requisite to success.3. but while a creditor in the position of the present plaintiff is entitled to sue, he can only do so on behalf of all other creditors of the transferer, so that when the case goes' back to be dealt with on the merits, it will be necessary.....
Judgment:

L.H. Jenkins, C.J.

1. This appeal raises the point whether a person can sue under Section 53 of the Transfer of Property Act before he has obtained a decree on the debt by virtue of which he claims to be a creditor of the transferer.

2. Under the Statute 13 Eliz., c. 5, on which this section is in part based, a creditor can sue before recovering judgment on his debt, but the words of that statute are no doubt different. The difficulty here is created by the provision in Section 53 that the transfer is voidable at the option of any person so defrauded, defeated or delayed, for it maybe argued that a creditor whose debt is not established by a decree does not fall within this description. But it appears to us that this is a question to be determined by reference to the facts of each case. The decree is evidence--and valuable evidence--that he who complains is a creditor; but it is not the only evidence. The plaintiff's position may be proved otherwise, and proved as against the debtor, where, as here, he is a party to the suit. The absence, then, of a decree is not fatal: though it may have the result that the proof required of the creditor becomes more complicated, and the standard more exacting to prove the conditions requisite to success.

3. But while a creditor in the position of the present plaintiff is entitled to sue, he can only do so on behalf of all other creditors of the transferer, so that when the case goes' back to be dealt with on the merits, it will be necessary for the Court to bear this in mind, and require such amendments as may be necessary to bring the suit into conformity with this rule of law.

4. As far as this appeal is concerned the order of the District Judge is confirmed. Costs to be costs in suit.


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