OFFICIAL ASSIGNEE OF MADRAS Vs. LDRAMCHANDRA IYER

JUDGEMENT

(1.) This is an appeal by the Official Assignee of Madras and as such the Assignee of the property and credits of Arbuthnot & Co., insolvent-debtors against the order of the Insolvency Commissioner passed in Petition No. 181 of 1906. The preliminary objection is taken that the Official Assignee is not entitled to appeal. The respondent holds a fixed deposit receipt from Arbuthnot & Co. The amount with interest fell due on the 9 October 1906. The respondent applied to the Official Assignee for payment of the amount due to him in full on the ground that he had demanded payment from Arbuthnot A Co., on the 18 October 1903 and before that firm suspended payment. The Official Assignee refused to pay. The respondent thereupon gave a notice of motion to the Official Assignee stating that he intended to move the Court for an order that the amount due under the deposit receipt might be paid to him out of the assets of the insolvent in the hands of the Official Assignee. The Insolvency Commissioner after hearing the Official Assignee passed an order as prayed for by the respondent. It is against this order that the Official Assignee appeals.

(2.) Under Section 73 of the Indian Insolvency Act, 1848, "any person who shall think himself aggrieved" by an order of the Court may appeal. It does not, we think, follow from this that any person can claim a hearing by merely stating that he thinks himself aggrieved. Unless it appears that he is actually "aggrieved," in the proper meaning of that expression, he cannot maintain ah appeal. Thus in Ex parte Bittern; In re Woods 11 Ch. D. 56 : 40 L.T. 297 ; 27 W.R. 401, it was held that a person who alleged himself to be a creditor but had not tendered any proof of debt was not a "person aggrieved" by the order to which he objected and was not entitled to appeal against it. Under Section 71 of the English Bankruptcy Act of 1869 and Section 101 of the Act of 1883 any person aggrieved" may appeal. The words used in the Indian Statute do not seem to mean anything different. In Ex parte Side Botham; In re Side Botham 14 Ch. D. 458 at p. 465 : 49 L.J. Bk. 41 : 42 L.T. 788 : 28 W.R. 715, James, L.J. said: "a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." In Ex parte Official Receiver, In re Reed Bowen and Co. 19 Q.B.D. 174 : 56 L.J.Q.B. 447 : 56 L.T. 876 : 35 W.R. 860, 4 Morrell. 225, the question arose whether the official receiver was a person aggrieved" by an order adjourning an application of his under Rule 191 of the Bankruptcy Rules 1886, for an immediate adjudication of bankruptcy against a debtor. Lord Esher M.R. observed, at page 177: "Therefore, he, as it seems to me, is made a party to an application against the debtor for a judicial decision upon matters of fact which may be in contest and I cannot doubt that he is bound to maintain the application by producing evidence and by arguing upon the effect of that evidence. Therefore, he is placed in the position of a party to a litigation before a judicial tribunal." His Lordship then proceeded to consider whether official receiver was a "person aggrieved" by the decision and so entitled to appeal and after pointing out that James, L.J. in Ex parte Side Botham; In re Side Botham 14 Ch. D. 458 at p. 465 : 49 L.J. Bk. 41 : 42 L.T. 788 : 28 W.R. 715, when saying a person aggrieved" must be a man who has suffered a legal grievance did not say a pecuniary grievance, a grievance to his property or to his person explained the definition of the term given by James L.J. in Exparte Side Botham; In re Side Botham 14 Ch. D. 458 at p. 465 : 49 L.J. Bk. 41 : 42 L.T. 788 : 28 W.R. 715, as meaning among other things that a person aggrieved" must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand." Finally he said: "When yon see that the official receiver is by Rule 191, a person who is to make and to support this application and who is bound to prove the grounds affirmative and negative on which the application ought to be granted, if he says that the facts have been wrongly decided against him, or that, the facts being decided in hisfavour, the Court has come to a wrong conclusion in refusing the application, it seems to me that he is, within the definitions given in Ex parte Side Botham 14 Ch. D. 458 at p. 465 : 49 L.J. Bk. 41 : 42 L.T. 788 : 28 W.R. 715,, "a person aggrieved." In re Iamb Exparte Board of Trade (1894) 2 Q.B.D. 805 : 64 L.J.Q.B. 71 : 9 R. 636 : 71 L.T. 312 : 1 Manson. 373 : 42 W.R. 544, the question arose whether the Board of Trade was aggrieved" by a decision that an objection taken by them to the appointment of a. trustee of the property of a bankrupt was invalid. It was held that they were "aggrieved." Lord Esher M.R. at page 812 referred to Ex parte Official Receiver, In re Reed Bowen and Co. 19 Q.B.D. 174 : 56 L.J.Q.B. 447 : 56 L.T. 876 : 35 W.R. 860 4 Morrell. 225. quoted above as determine that any person who makes an application to a Court for a decision or any person who is brought before a Court to submit to a decision, is, if the decision goes against him, hereby a person "aggrieved" by that decision. He then proceeded to say: "Here the creditors summoned the Board the validity of their objection, to support the validity of their objection, and the Board went before the Judge. The Board wad the creditors were heard and the Judge had to give his determination. That determination being against the Board upon the matter which was brought before the Court they are aggrieved" by it if is wrong. They are, therefore person aggrieved and are entitled to appeal to this Court.

(3.) In the light of these rulings we have no hesitation in holding that the Official Assignee is a person aggrieved "by the order now appealed against. He was brought before the Court to submit to a decision that he was bound to pay a certain sum to the respondent, and the decision was against him. An at tempt was made to distinguish In re Lamb; Ex patre Board of Trade (1894) 2 Q.B.D. 805 : 64 L.J.Q.B. 71 : 9 R. 636 : 71 L.T. 312 : 1 Manson. 373 : 42 W.R. 544, on the ground hat Lord Esher M.R. remarked that if the Board of Trade could not appeal there could be no appellant. It is pointed out that in the present case, even if the Official Assignee did not appeal, any creditor might appeal. Again Ex parte Official Receive, In re Reed Bowen and Co. 19 Q.B.D. 174 : 56 L.J. Q.B. 447 : 56 L.T. 876 : 35 W.R. 860, 4 Morrell. 255, was sought to distinguished on he ground that the application was made thereby the official receiver prior to adjudication and that the application having been refused the official receiver was the natural person to appeal the definitions of "person aggrieved" were, however, arrived at quit independently of the special circumstances of these cases and are of general application.