CHANDRAKANT DEVJI Vs. NAROTTAMDAS AMARCHAND

JUDGEMENT

(1.) THIS is a motion in appeal No.35 of 1940 asking, in the first instance, that the appeal may be dismissed under Order XXII, Rule8, Civil Procedure Code, 1908, and, in the alternative, that the appellant may be ordered to give further security for the coats of the appeal. The appeal is against a money decree passed against the appellant. After the passing of the decree, the decree-holders got the debtor adjudicated insolvent. There is, we are told, an appeal against the order of adjudication, but at the moment the order of adjudication stands.

(2.) THE contention of the respondents on this motion is that the right to appeal against the money decree is vested in the Official Assignee, and that the appeal has abated under Order XXII, Rule8, and ought to be dismissed under Sub-rule (2). Mr. Engineer for the respondents has relied on a decision of this Court in Rustomji v. Byramji (1933) 36 Bom. L.R. 79, but in my opinion, that decision is not in point. THE Court there was considering whether a right to sue to set aside a money decree on the ground of fraud vested in the Official Assignee, and the Court held that it did so vest. But the question here is whether a right to appeal against a money decree is affected by the insolvency of the appellant debtor, and that question must be determined by a reference to the Civil Procedure Code. At the moment when this appeal was filed, it was a well constituted appeal. That is not in dispute. THE question is whether it ceased to be a well constituted appeal by reason of the insolvency of the appellant. That question turns on Order XXII, Rule 8, Civil Procedure Code, which provides in Sub-rule (1) that the insolvency of a plaintiff in any suit, which the Assignee or the Receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such Assignee or Receiver declines to continue the suit or to give security for the costs thereof as therein mentioned. I agree with the view expressed by the Lahore High Court in Mul Chand-Ganga Bishen v. R.M. Downie and Co., Ltd. (1928) I.L.R. 10 Lah, 208, that the plain implication of that section is that the suit does abate, if the Assignee declines to continue the suit or to give the security, although that is not expressed in terms. Sub-rule (2)enables the Court to dismiss the suit where it has abated under Sub-rule (1). Rule 8 is made applicable to appeals by Rule 11.

(3.) I agree.