1. The facts material to the decision of the preliminary point are admitted to be these, that the suit was brought against the first defendant and while the suit was pending and after an ex parte decree had been made against him, he became an insolvent. About a month after his insolvency, he applied to have the ex parte decree set aside and the matter was argued before Davar J. without any mention being made of the defendant No. 1 having been adjudicated an insolvent. Davar J. set aside the ex parte decree, and about a month later, it appears to have come to the plaintiff's knowledge that the defendant No. 1 was an insolvent. Correspondence with the Official Assignee followed. Leave seems to have been obtained to bring the Official Assignee on the record under Order XXII, Rule 10. That has been done. The Official Assignee subsequently refused to defend the suit. Defendant No. 1, however, has elected to defend independently of the Official Assignee and appears here by two counsel. The question is, whether he can be allowed to defend the suit. Notwithstanding the elaborate decision of Sir Joseph Arnould in the case of In re Hunt Monnet & Co. v. Bholagir Mangir et al (1864) 1 Bom. H.C.R. 251 upon which defendant I's learned counsel strongly relies, and the decision on the Original Side of the Calcutta High Court in the case of Chandmull v. Ranee Soondery Dossee I.L.R. (1894) Cal. 259 following Sir Joseph Arnould's decision, it appears to me very clear, not only on principle but under the express words of our Statute, that no cause of action at present survives against defendant No. 1, and that the suit against him ought to be dismissed at once. It is a clear case of his interest in the plaint property having devolved upon the Official Assignee. The Official Assignee has been made a party to this suit with the leave of the Court. It is obvious, then, that both he and the defendant No. 1 from whom the said interest has devolved upon him, cannot, in reason, both stand together on the array. The only person at present who possesses any interest whatever in this property from the point of view of the plaint in the present suit is not the defendant No. 1 but the Official Assignee. It is, therefore, a case in which defendant No. 1 is being wrongly sued in the events that have happened and not a case in which it is unnecessary that the Official Assignee should be made a party-defendant.
2. The only question remaining to be answered is, whether, in thus dismissing the suit against the defendant No. 1, he should have his costs. Up to the appearance before my brother Davar J. I see no reason why he should not have. But inasmuch as he there withheld from the learned Judge what ought to have been disclosed and what being disclosed would have rendered his further appearance on the record unnecessary, in my opinion, he is not entitled to the costs of that or subsequent proceedings.
3. I must, therefore, now dismiss the suit against defendant No. 1 with costs up to the application for the rule by Davar J., and thereafter no order as to his costs.
4. I may say that I believe that the object of this strange procedure is simply to endeavour to get a decree from the Court in favour of defendant No. 1 without those, who are supplying him with funds, being under the risk of paying the plaintiff's costs, should the plaintiff succeed; for I understand no one has come forward to guarantee the Official Assignee's costs, should the Official Assignee have defended the suit in place of defendant No. 1. Suit dismissed.