HAJI SAJAN LALJI Vs. NCMACLEOD

JUDGEMENT

(1.) The suit in which this appeal is brought was instituted by Mr. N. C. Macleod as Official Assignee of Hasambhai Visram, Hajibhai Visram, and Fazulbhai Visratn, who had traded under the name and firm of Messrs. Visram Ebrahim & Company. The object of the suit was to recover a considerable sum of money alleged to be due by the defendant to the insolvents firm in respect of certain business dealings. In the Court below preliminary issues were raised as to whether the plaintiff was entitled (a) to file, and (b) to maintain the suit. These issues the learned Judge decided in the plaintiff's favour, and from that decision the defendant now appeals. The broad ground upon which the appeal is brought is that the plaintiff as Official Assignee became funetus officio and that the property of the insolvents revested in them either before the institution, or during the pendency, of the suit; and for the better understanding of the points in controversy it is necessary to set out certain dates and facts which are not disputed.

(2.) On 14 October 1903 Hasam and Haji filed their petitions, and a vesting order was made by the Insolvency Court. On the following day the third partner, Fazalbhai, was adjudicated an insolvent, and a vesting order was made (Exts. G and H).

(3.) On 15 June 1904 Hasam and Haji took out a Rule Nisi (Ex. E) for leave to withdraw their petition " on payment to Mr. Macleod as trustee of a sum sufficient to pay a composition of six annas in the rupee to the unsecured creditors of the said insolvents" ; and on the same day Fazalbhai took out a Rule for the. re vocation, of his adjudication upon the same terms (Ex. F).