NARENDRA MANUBHAI GHAEL Vs. BHIKHABHAI BHUKHANDAS MODI
HIGH COURT OF GUJARAT
NARENDRA MANUBHAI GHAEL
BHIKHABHAI BHUKHANDAS MODI
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V.B. Raju, J. -
(1.) This is a revision application by the original defendants Nos. 2 and 3. Opponents Nos 1 to 3 were the original plaintiffs and opponent No. 4 was original defendant No. 1. The plaintiffs gbtained a decree in Special Civil Suit No. 31 of 1960 for Rs, 20,000/- which was passed against opponent No. 4 who is the father of the applicants and one G. K. Ghael. In the plaint filed by ihe plaintiffs, it was alleged that certain partition between the sons of opponent No. 4 was a transfer and fraud on the creditors and should be declared as such. A declaration was also prayed that the plaintiffs have right to attach the property in question. The plaint also prayed for an injunction to restrain the petitioners and opponent No. 4 from obstructing the plaintiffs from recovering their dues by attachment of the property.
(2.) Various contentions were raised in the written statement including one relating to the maintainability of the suit. By its judgment dated 39-8-61, the trial Court held that the suit was properly filed and was maintainable. It also held that the suit was not barred by the provisions of Section 47 of the Code of Civil Procedure. It is that order which is challenged in this revision, and the applicants' contentions urged in revision are (1) that the suit being one for declaration is not maintainable, and (2) that the order regarding the Court-fee is not correct.
(3.) Regarding ihe maintainability of the suit, it is to be noted that the plaint prayed for two declarations, one, that a certain partition was a transfer and fraud on the creditors. The suit was not filed in a representative capacity on behalf of all the creditors, hence the claim for such a declaration in the plaint is clearly not maintainable. But there was another claim in the plaint namely lor a declaration that the plaintiffs were entitled to attach the suit property in the course of the execution of the decree in Special Civil Suit No. 31 of 1960.;
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