R.K. Abdul Rahiman Sahib and Co. vs Shaw Wallace and Co.

Devadoss, J.—This is an application by the defendants, for bringing the decree into conformity with the judgment and for making the Official

Assignee pay the costs of the action personally and for other reliefs. In my judgment Reported in R.K. Abdul Rahiman Sahib and Co. Vs. Shaw

Wallace and Co., I held that the defendants were entitled to the costs of the action. Mr. Rajagopalan, who appears for the defendants, contends

that the decree is not in conformity with the judgment, inasmuch as the decree contains the words, ""from and out of the estate of the 1st plaintiffs,

adjudicated insolvents, in his hands."" It is urged that when the Official Assignee is a party to a suit, the proper order to make is to make him pay

the costs personally. Mr. Rajagopalan relies upon Boreman v. Wilson 28 Ch. 53 School Board for London v. Wall Brothers (1891) 8 Moor. 202

Hill v. Cooke-Hill (1916) W.N. 61 and also Suresh Chander Gooyee In re 23 C.W.N. 431. These cases do not support the contention of the

defendants. It is in the discretion of the Court, which decides the case, to direct the Official Assignee, or the trustee, in bankruptcy, to pay the

costs personally. If the action is by the insolvents and the Official Assignee continues the action, knowing that the action is wholly unsustainable, or

that in the conduct of the action he is guilty of any conduct, which a prudent man would not be a party to, then it would be open to the Court, to

direct the Official Assignee to pay the costs of the action personally. But where there is a bona fide dispute and where the facts are such that it

would not be easy to decide, whether the bankrupt has a good case or not, the Official Assignee, if he acts bona fide, should not be made to pay

the costs personally, that is, out of his pocket; but he is entitled to have an order made, to pay the costs out of the estate. In this case, there was a

bona fide dispute and the question was not free from difficulty. After a protracted argument, I came to the conclusion that the plaintiffs were not

entitled to succeed in the action. That being so, I think the Official Assignee was well advised in continuing the suit, after the plaintiffs became

insolvent; and this is not a fit case in which the Official Assignee should be directed to pay the costs of the action personally. In this connection I

may refer to a case reported in Arthur Williams & Co. In re v. Official Receiver, Ex parte 23 C.W.N. 431. When I delivered my judgment I did

not intend that the Official Assignee should pay the costs personally. The decree, as drawn up, is correct; but the costs of the defendants should be

paid out of the estate and they should not be asked to rank as creditors in respect of the costs they have incurred in the suit. This application is

dismissed, but without costs.