V M ABDUL RAHMAN Vs. D K CASSIM AND SONS

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted in the name of respondent 1 firm (hereinafter referred to as respondent 1) on the original side of the Rangoon High Court, alleging, in effect, a conspiracy between the two named defendants to ruin the business of respondents 1, and claiming Rs.5,00,000 by way of damages. The first of the two defendants was the appellant, V. M. Abdul Rahman, now deceased, and represented by his heirs. The other was respondent 2, who does not appear before the Board. After the hearing of the suit had commenced in the trial Court respondents 1 wereapparently upon their own application adjudicated insolvents. On this being brought to the notice of the Judge, he on 13 February 1929 adjourned the trial, and gave a month's time to the Official Assignee to consider whether he would proceed with the suit on behalf of the creditors. On 11 March 1929 the Judge being then engaged in the Criminal Sessions, the matter seems to have come before the Deputy Registrar, who enlarged the time till 2nd April. On this date the Deputy Registrar gave a further extension to 24 April and directed that the Official Assignee should "be brought on the record as plaintiff in the place of the insolvent plaintiffs,"and the heading of the plaint was amended accordingly by the Assistant Registrar.

(2.) On 24 April the matter was again mentioned to the Deputy Registrar, when counsel for the Official Assignee stated that "he had asked the insolvents to furnish him with security, but they had failed to do so."Whereupon counsel for the appellant asked that the matter be placed before the Judge for the dismissal of the suit."This was done, and on 29 April the suit was, by a decree of that date, dismissed. The decree was headed as in a suit between, the Official Assignee, as assignee of the estate of respondents 1, and the defendants, but despite this fact and the amendment of the plaint "above referred to respondents 1 seem to have been treated as still parties to the proceedings, the Official Assignee disappearing from the stage altogether. They were given leave to appeal against the decree as paupers : their appeal was heard; the decree was set aside, and the suit was remanded to the original Court for trial on the merits. Against this order the present appeal has been brought to His Majesty in Council, upon a certificate of the High Court that the case fulfils the requirements of S. 110, Civil PC 1908. Before their Lordships a preliminary objection has been taken by respondent 1's counsel that the appeal is incompetent and that the certificate was wrongly granted. The ground of the objection is that the order of the appellate Court was neither a decree nor a 'final order' within S. 109 (a) and therefore not appealable under S. 110.

(3.) The grounds of respondent 1 's appeal in India, were, in effect, that their claim for damages was not property which vested under the Insolvency Act in the Official Assignee, that they were therefore entitled to continue the suit in their own names without his intervention; and that it had been wrongly dismissed. It will be seen that this was in reality an objection that the Official Assignee ought not to have been brought on the record in their place, but there is nothing to show that any such contention was raised on their behalf before the dismissal of the suit. Indeed the point seems to have been first suggested on behalf of a creditor, who was in fact the father-in-law of one of the insolvents, when the trial Judge was actually delivering his judgment. It does not appear however to have been objected before the appellate Court that the question was not open to respondents 1, or that they had ceased to be parties to the suit before the decree of the trial Judge was made, and their Lordships are not prepared now to take any account of the very apparent irregularities in the trial Court.