OFFICIAL ASSIGNEE OF CALCUTTA Vs. FREDERICK LIONEL HARCOURT

JUDGEMENT

(1.) In the year 1921, Mr. Frederick Lionel Harcourt was adjudicated an insolvent and, by an order made on 8 March 1922 upon his application for discharge, it was ordered that the insolvent be given an immediate discharge upon the condition that he consented to a judgment being entered up against him for the sum of Rupees 28,365-5-8. It has been found as a fact by the learned Judge and not disputed before us that the insolvent signed on a proper form his consent to a judgment for that amount being entered up against him. He swears that he did so on the day the order was made. No further steps however were taken for the drawing up of the order made upon the application for discharge and it appears to be clear that that order has not yet been drawn up, signed or filed. Bight years afterwards, in May 1930, the insolvent who had been conducting himself as he tells us, on the footing that he had obtained an immediate--if a conditional--discharge settled a suit which he had brought for the recovery of a large sum on account of salary and a further sum on account of damages for wrongful dismissal against a company called the Eastern Tavoy Minerals Corporation, Ltd., and by reason of various proceedings to which I need not now refer, a sum of Rs. 35,000 was paid by those defendants into Court to the credit of that suit.

(2.) The Official Assignee coming to hear of this took steps apparently to obtain this money for the benefit of the creditors in the insolvency and, by his letter of 2 June, 1930 written to the Registrar, he claimed that the sum should be held and not paid over to Mr. Harcourt by reason of the fact that he was about; to apply for leave to execute the judgment pursuant to the order made on the application for discharge. No judgment had ever been filed and at a later stage an application was made before Lort-Williams, J., which application was apparently based not upon the footing that the Official Assignee was entitled to execute the judgment but on the footing that as the order made upon the application for discharge had never been completed, Mr. Harcourt was still an undischarged insolvent. The same ground was taken on the application to the learned Judge sitting in insolvency from whose order this appeal has been preferred. The Official Assignee maintains that all three years by reason of the insolvent's failure to get the order drawn up and completed Mr. Harcourt has not been discharged and is an undischarged insolvent and ha claims on the ground that as he was intervened this after- acquired property of the insolvent is claimable by him for the benefit of the insolvent's estate. In addition to that ground, he further makes a claim on the footing that the ought to have the judgment drawn up and leave to execute the judgment. In his affidavit, the Official Assignee enlarges at considerable length upon those various points. Not only does he contend that the insolvent is still an undischarged insolvent but he apparently makes a grievance of the fact that the insolvent has not rendered an annual statement of his earnings; a statement which would not ha required on the footing that he was not discharged as the order made on the application for discharge had not been completed.

(3.) Before us the contention of the Official Assignee has been supported by learned Counsel on his behalf by reference to Rule 137 of the Insolvency Rules of this Court. That rule runs thus: The order of the Court made on an application, for discharge shall be dated of the day on which it is made and shall effect from the day on which the order is drawn up and signed; but no officio or certified copy of such order (save an office copy for the purposes of an appeal) shall be delivered out nor shall such order be gazetted until after the expiration of the time allowed for appeal or, if an appeal be entered, until after the decision of the appellate Court thereon.