RUSTOMJI ARDESHIR COOPER Vs. BYRAMJI BOMANJI TALATI

JUDGEMENT

(1.) This is an appeal in which the respondent asks to have the appeal dismissed on the ground that no paper book has been delivered.

(2.) The position of the matter is this. There was a suit brought by one Talati against one Cooper in the year 1929 to recover a sum of money, and on February 28, 1929, judgment was given against Cooper for Rs. 90,000. On September 30, 1930, Cooper started his present suit to have the decree of February 28, 1929, set aside, his contention being, I understand, that the decree was obtained by fraud and in his absence. On December 23, 1932, Mr. Justice Kania gave judgment in the suit dismissing the plaintiff's claim, and in February 1933, this appeal was lodged by Cooper. Subsequently on March 27, 1933, Cooper was adjudicated insolvent on the petition of this particular judgment-creditor.

(3.) When the matter first came before this Court, it was assumed by everybody that if any right of appeal lay, the right would be in the, Official Assignee, and we stood the matter over for a short time to enable the Official Assignee to make up his mind whether he desired to appeal or not. He subsequently came to the conclusion that he did not desire to appeal. Certain creditors then appealed from that decision of the Official Assignee to the Judge in Insolvency, and the learned Judge dismissed the appeal and upheld the decision of the Official Assignee not to appeal. The learned Judge in insolvency does not appear to have gone into the merits of the question whether the appeal was likely to be successful. He seems to have held that he ought not to interfere with the discretion of the Official Assignee. Inasmuch as the Official Assignee had, in express terms and properly, submitted the exercise of his discretion to the Court, I think the learned Judge ought to have dealt with the matter on merits. We are told that the creditors, who were interested in bringing that appeal before the Insolvency Judge, desire to appeal from his decision to this Court, and so far as they are concerned, they ask that this appeal may stand over until after they have brought that appeal.