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TMI Blog1915 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... node. He had on December 14, 1900, sued for the debt, and on January 5, 1901, had presented a petition for security by way of attachment before judgment. On February 11, 1901, Kishun Benode had made an affidavit that he did not intend to transfer any of his properties, and accordingly on February 11, 1901, the petition was dismissed. 3. In this state of facts the two kobalas were executed by the debtor on September 2, 1901. 4. On December 5, 1901, the plaintiff obtained judgment in his action for ₹ 12,695.10 and costs. The defendant did not appear at the trial. On December 21, 1901, Kishun Benode applied for a rehearing, but on August 2, 1902, that application was dismissed by default. In the interval, namely, on June 11, 1902, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full and leaving others unpaid although the result may be that the rest of his assets will be insufficient to provide for the payment of the rest of his debts. The law is, in their Lordships' opinion, rightly stated by Palles C.B. in In re Moroney (1888) L.R. 21 Ir. 27, 62, where he says : " The right of the creditors, taken as a whole, is that all the property of the debtor should be applied in payment of demands of them or some of them, without any portion of it being parted with without consideration or reserved or retained by the debtor to their prejudice. Now it follows from this, that security given by a debtor to one creditor upon a portion of or upon all his property (although the effect of it, or even the interest of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter June 11, 1902, Kishun Benode was playing for time, and that this fact and the fact that the former kobala was fictitious and fraudulent show that the latter kobala was fraudulent also. Their Lordships do not accept this contention. The kobala in favour of the respondents must stand or fall on its own merits. The concurrent finding that the consideration for the deed was real reduces the case to one in which the debtor has preferred one creditor to the detriment of another, but this in itself is no ground for impeaching it under the section even if the debtor was intending to defeat an anticipated execution by the plaintiff.
12. Their Lordships will humbly advise His Majesty that the appeal should stand dismissed with costs. X X X X Extracts X X X X X X X X Extracts X X X X
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