OFFICIAL RECEIVER OF COIMBATORE DISTRICT Vs. DDKANGA

JUDGEMENT

(1.) It is evident from paragraphs 15 and 16 of the affidavit that accompanied both C.M.P. No. 2723 of 1919, the 2nd appellant's petition for stay of the sale of the insolvent's property, and C.M.P. No. 2724 of 1919, the petition for a direction to be given to the Official Receiver, Coimbatore, to file a suit against the Respondent in this appeal for damages on account of his action in allowing the promissory note for Rs. 10,000, to become time barred, that the purpose of the latter petition, was to get a suit filed within October 27th, 1919, after which date a suit upon that cause of action would have been out of time.

(2.) C.M.A. 272 of 1919, wherein the order of the District Judge of Coimbatore directing the Official Receiver not to file a suit was appealed against, was not placed before Odgers, J, for disposal, nor did that learned Judge purport to deal with the District Judge's order, 1 consider therefore that Bakewell J. who dealt with an application for stay of proceedings in the suit, pending the disposal of C.M.A. No. 272 of 1919, and Phillips J, who tried the suit, were right in regarding Odgers J's order as a provisional subject to the result of the C.M.A.

(3.) The learned Judges (Oldfield and Seshagiri Iyer, JJ.) who heard the C M A observed that the order of Odgers, J. was in force and that they could not interfere with it in the proceedings before them. They next went on to say that in these circumstances it would be useless to dispose of the appeal and to dismiss it. Apparently they failed to notice that Odgers, J. could not and did not set aside the District Judge's order refusing leave to sue, an order that was passed by him as a court exercising jurisdiction under the Provincial Insolvency Act (Vide the expression "by leave of the Court" in Section 20 of Act III of 1907, the enactment then in force, and the definition of "Court" in Section 2(1)(g). They also seem to have overlooked the fact that the result of the Bench dismissing the appeal would be to leave the District Judge's order prohibiting the Official Receiver from suing in full force and effect. I have no doubt that their intention was to give full effect to Odgers, J's order and that this result might have been attained by allowing the appeal instead of dismissing it.