9911796707
TMI Blog1932 (12) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... The other was respondent 2, who does not appear before the Board. After the hearing of the suit had commenced in the trial Court respondents 1 were-apparently upon their own application- adjudicated insolvents. On this being brought to the notice of the Judge, he on 13th February 1929 adjourned the trial, and gave a month's time to the Official Assignee to consider whether he would proceed with the suit on behalf of the creditors. On 11th March 1929 the Judge being then engaged in the Criminal Sessions, the matter seems to have come before the Deputy Registrar, who enlarged the time till 2nd April. On this date the Deputy Registrar gave a further extension to 24th April and directed that the Official Assignee should be brought on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Court was neither a decree nor a 'final order' within Section 109 (a) and therefore not appealable under Section 110. 3. The grounds of respondent l's appeal in India, were, in effect, that their claim for damages was not property which vested under the Insolvency Act in the Official Assignee, that they were therefore entitled to continue the suit in their own names without his intervention; and that it had been wrongly dismissed. It will be seen that this was in reality an objection that the Official Assignee ought not to have been brought on the record in their place, but there is nothing to show that any such contention was raised on their behalf before the dismissal of the suit. Indeed the point seems to have been fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 109 (a), and this question is, their Lordships think, concluded by the judgment of this Board delivered by Lord Cave in Ramchand Manjimal v. Goverdhandas Vishindas AIR 1920 PC 86. Upon the application for the certificate the matter was gone into at considerable length by the Officiating Chief Justice and Ellis Cunliffe, J., but by some mischance the authority just referred to was overlooked. Two other cases before this Board were relied on by the learned Judges, viz., Rahimbhoy Habibhoy v. Turner (1891) 15 Bom 155 and Muzhar Husein v. Bodha Bibi (1895) 17 All 112. But both of these cases were decided with reference to the Civil Procedure Code of 1882, in which the wording of the relevant sections differed materially from that of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order and that therefore the certificate was wrongly given and the appeals incompetent. 6. The objection was upheld and the appeals were dismissed. Lord Cave in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is whether the order finally disposes of the rights of the parties, and he held that the order then under appeal did not finally dispose of these rights, but left them to be determined by the Courts in the ordinary way. It should be noted that the appellate Court in India was of opinion that the order it had made went to the root of the suit, namely, the jurisdiction of the Court to entertain it, and it was for this reason that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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