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The Official Assignee of Madras. Vs. Doraiappa Aiyar Alias Krishnaswami Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in71Ind.Cas.1056; (1923)44MLJ411
AppellantThe Official Assignee of Madras.
RespondentDoraiappa Aiyar Alias Krishnaswami Aiyar and ors.
Excerpt:
- orderwalter salis schwabe, k.c., c.j.1. this is an application by the official assignee of madras. what he asks for is an interpretation of an order of this court under which an appeal was dismissed 'with costs' and the order drawn up is 'costs of the respondent.' it is clear from what took place and from the wording of the order that that order was intended to apply to the official assignee only. he gets his costs and the other respondents get none.2. the second point raised in the case is that one half of the ordinary fees on the original side has been allowed under rule 136 of the insolvency rules. it is contended that that rule applies only to cases in which fees are payable out of the estate, and we are referred to the analogous rule in bankruptcy in england and to authorities.....
Judgment:
ORDER

Walter Salis Schwabe, K.C., C.J.

1. This is an application by the Official Assignee of Madras. What he asks for is an interpretation of an order of this Court under which an appeal was dismissed 'with costs' and the order drawn up is 'costs of the respondent.' It is clear from what took place and from the wording of the order that that order was intended to apply to the Official Assignee only. He gets his costs and the other respondents get none.

2. The second point raised in the case is that one half of the ordinary fees on the Original Side has been allowed under Rule 136 of the Insolvency Rules. It is contended that that rule applies only to cases in which fees are payable out of the estate, and we are referred to the analogous rule in Bankruptcy in England and to authorities decided thereunder. The English rule in small insolvencies gives three-fifths of the charges ordinarily allowed in all proceedings under the Act and those rules, and it has been held that that applies directly to proceedings under the Act, and does not apply to cases in which the proceedings are between the Official Received and third parties. But we have to interpret the Madras Rules, and Rule 133 gives the Court, which is the Court which heard this case, power to direct the costs of any petition, application or matter to be paid by any party to the proceedings or to be paid out of any fund in or under the control of the Court or in the hands of the Official Assignee, and generally to deal with the costs of all proceedings in the Court as to it may seem just. That rule seems to me to cover all proceedings under the Act and it gives the Court power to deal with proper discretion, with the costs of any such proceedings: and the succeeding Rule 136, which states the scale of costs, in my judgment, applies; and the legislature has thought fit to make the costs in an insolvency only half the ordinary costs. There again, the whole position is safeguarded by Sub-clause (3) of Rule 136, which gives the Court power under Rule 40 of Appendix IV to the High Court Fee Rules, to allow in proper cases the full fees instead of half. So that, the result is that in insolvency proceedings, unless an order is made to the contrary, the rule is half the Attorney's fees. Whether this would have been a proper case to allow the full fees is a matter which is not open to discussion now. Such application should have been made at the hearing of the appeal.

3. The costs of the Official Assignee and of the appellant in this application shall be paid out of the estate.

Wallace, J.

4. I agree.


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