James Bevis And Ors. vs C.A. Turner And Ors. on 4 September, 1883

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Bombay High Court
James Bevis And Ors. vs C.A. Turner And Ors. on 4 September, 1883
Equivalent citations: (1883) ILR 7 Bom 484
Author: Scott
Bench: Scott


Scott, J.

1. I am asked in this case to make a final order as to costs. When I gave judgment, I allowed the Official Assignee time to recover the costs from the creditors of the insolvent’s estate, who, he supposed, had guaranteed the costs of the suit: It appears now that he was mistaken as to the existence of that guarantee, I am not surprised at his mistake after reading the correspondence that passed between him and his attorneys. But the question I have now to decide is whether the Official Assignee must still be held liable. I do not think the current of decisions leaves me any discretion in the matter. Pitts v. La Fontaine L.R. 6 Ap. Ca. (P. C) 482 is the last reported case on the subject. Ex p. Angerstein L.R. 9 Ch. Ap. 479 is there adopted by the Privy Council as the law on this point. The rule there laid down is that a trustee in bankruptcy (who is equivalent to the Official Assignee) is liable in the same way as any other party to costs. If success is doubtful, he must obtain an indemnity from the creditors. If he fails to do that, and the estate is insufficient to pay the costs, he must make up the deficiency. I am next asked to call upon the guarantors to show cause why they should not pay the costs. This involves the question of principle whether persons, not parties to the record, can be made subject to such an order. Under the old Procedure Code of 1859, that perhaps was possible. But in Section 219 of the new Code the addition of the words “to the suit” to the word “party” seems to show that the Court no longer possesses this power. In England the general rule is that Courts have no power except over parties to the record. The only cases of exception are where the party, before the Court was a mere puppet in the hands of a stranger to the suit. The present case does not constitute such an exception.–Hayward v. Giffard 4 H & W. 194 and S.M. Prankumari Dasi v. Abinash Chunder Mookerjee 9 Beng. L.R. 210. The Official Assignee is not, however, without a remedy. An action on the alleged guarantee against the three creditors, or on the alleged negligence against the attorneys, is his proper course. Meanwhile the order must be that the Official Assignee pay the costs of the suit, with leave to recover them from the estate.

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