INDIAN SUGARS AND REFINERIES LTD Vs. V M P MALAIPERUMAL PILLAI

JUDGEMENT

(1.) These are two connected petitions filed by the Indian Sugars and Refineries Ltd., Hospet, the first being a petition against Malaiperumal Pillai the plaintiff in O. S. No. 50 of 1947 on the file of the Sub-Court, Bellary. The suit was filed against the petitioner, claiming damages of 21/2 lakhs of rupees, in respect of an alleged contract in January 1949 relating to the sale of molasses. Malaiperumal Pillai was originally adjudicated insolvent in the Sub-Court, Negapatam, in I. P. No. 2 of 1932, and was subsequently adjudicated an insolvent by the High Court in I. P. No. 18 of 1936. The Negapatam insolvency was annulled in November 1938, and the claims therein were transferred to the Madras insolvency. One of the pleas taken by the petitioner in the suit was that the suit could not have been filed or continued by Malaiperumal Pillai as he was an insolvent. But the Court held that as the insolvency in the Negapatam Court, under the Provincial Insolvency Act, had terminated, and only the insolvency under the Presidency Insolvency Act remained, and the Official Assignee had not intervened, the insolvent could file the suit and continue it till the Official Assignee intervened. The suit was eventually dismissed by the Subordinate Judge, Bellary, in November 1947, with costs amounting to Rs. 2902. The Subordinate Judge held that there was no completed contract, and that, even if there had been a completed contract and the plaintiff was entitled to damages, the damages would only amount to Rs. 12,324. Malaiperumal Pillai filed App. No. 103 of 1949 on the file of this Court. He tried at first to file it as an appeal in forma pauperis for 21/2 lakhs of rupees, the original sum claimed in the plaint; but, when his pauper petition was rejected, he amended the valuation of his appeal by substituting Rs. 49,482 for 2 lakhs of rupees, and paid a court-fee of Rs. 1762-7 thereon. C.M.P. No. 5559 is a petition for directing Malaiperumal Pillai to furnish security for the suit costs and the estimated costs of the appeal amounting in all to Rs. 5325-2. C.M.P. No. 5560 is for directing the Official Assignee, Madras, to file a report and to pay the petitioner Rs. 2902, the suit costs, in consequence of the Official Assignee having intervened in the suit and financed the insolvent by paying him Rs. 1000 for conducting the litigation in the expectation of getting a decree in the suit against the petitioner and annexing its benefit to the estate of the insolvent in the hands of the Official Assignee.

(2.) The insolvent has not cared to contest C. M. P. No. 5560. The Official Assignee has appeared by counsel, and, while expressing his absence of any objection to the insolvent being ordered to furnish security for the suit costs and appeal costs, has contended that he cannot be made liable for any portion of the suit costs, as he had paid Rs. 1000 to the insolvent for financing the litigation under the orders of the insolvency Court, out of the Rs. 1600 remaining in the insolvent's estate at that time, since the Rs. 1600 would only suffice to pay the insolvent's creditors at two pies in the rupee, and, by investing this Rs. 1000 for financing the litigation, there was a good prospect of recovering valuable properties for the estate and giving a more decent dividend to the creditors. In any event, he wanted his liability to be limited to Rs. 1200 out of the Rs. 1359-5-6 remaining with him to the credit of the insolvent's estate. He has also taken a technical objection that he has had admittedly no part or lot in filing this appeal, and that the petition in the appeal against him is misconceived, and that, if at all, an independent petition should have been filed without hitching it on to the appeal.

(3.) This technical objection does not impress me. After all, an appeal is a continuation of the suit, and the suit costs awarded may or may not stand finally. It all depends on what the appellate decree is. It is not, therefore, as if the Official Assignee has been dragged into wholly unconnected proceedings. There is, of course, no allegation that the Official Assignee has been prejudiced by the application being put in, in this appeal. He has all along understood the import of the application, and the fact that it is made in the appeal has not in any way prejudiced him in his defence.