1954 (4) TMI 75

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....d 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 assig....

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....by him and which he could not lawfully set up in the suit or proceedings in which the decree or order was made against him." Now, there is no reason why in this new act of insolvency inserted in Section 9 by the Bombay Legislature, the expression "creditor" should not be used in the same sense as it is used in the rest of Section 9. It is significant that when the Bombay Legislature spoke of a decree or an order for payment, it did not qualify that by saying that the decree or order for payment must be in favour of the creditor. All that Section 9(i) requires is (1) that there must be a decree for payment, (2) that the decree or order for payment must be against the debtor, and (3) that an amount must be due to the person taking out the ....

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....tained the judgment or his legal representative could issue a bankruptcy notice. Then the Bankruptcy Act was amended by the Act of 1890 and that Act provided that a creditor who had obtained a final judgment or a final order could take out a bankruptcy notice, but the Act provided that a creditor who had obtained a final judgment or a final order meant any person who was for the time being entitled to enforce a final judgment or a final order. Therefore, when the Bombay Legislature put the amendment of the Insolvency Act on the statute book, it knew what the position in England was by reason of the Act of 1890. We may say that the same position obtains in the latest English Bankruptcy Act which is the Act of 1914. Therefore, the Bombay L....