JUDGMENT - LODHA R.M., J.:---None appears for the appellants.

2. The appeal is, accordingly, liable to be dismissed in default.

3. Even otherwise, we are satisfied that there is no merit in the appeal. The respondents 1 to 4 herein were adjudicated insolvents in the insolvency proceedings under the Presidency Towns Insolvency Act, 1909 on 3-11-1987. The Official Assignee took over the assets of the insolvents and auctioned the properties of the insolvents. The sale proceeds thereof came in the hands of Official Assignee. The Tax Recovery Officer No. 7, Bombay made a claim of Rs. 41,09,658/- on 12-1-1995 before the official assignee. Out of the said claim made by the tax recovery officer the claim of Rs. 35,02,277/- was rejected by the official assignee against the estate of insolvents. The reason for such rejection was that such claim was not provable under section 46(3) of Presidency Towns Insolvency Act as it was necessary that claim should pertain to the liability to which the debtor was subject when he was adjudged as insolvent or such claim to be pertaining to the obligation incurred by him before the date of adjudication. Aggrieved by the order of official assignee dated 25-7-1995 rejecting the claim of Rs. 35,02,277/-, the present appellants took out notice of motion being Notice of Motion No. 102/1995. The learned Single Judge, by the order dated 16-1-1996, upheld the order of the official assignee. Aggrieved thereby the present appeal has been preferred. Section 46(3) of the Presidency Towns Insolvency Act reads thus :

“46. Debts provable in insolvency.—

(1)..........

(2)..........

(3) Save as provided by sub-sections (1) and (2), all debts and liabilities, present or future, certain or contingent, to which the debtor is subject when he is adjudged an insolvent or to which he may become subject before his discharge by reason of any obligation incurred before the date of such adjudication, shall be deemed to be debts provable in insolvency.”

4. The Division Bench of this Court way back in the year 1931 in (Gustasp Behram Irani v. Bhagvandas Sobharam)1, A.I.R. 1931 Bom. 554, held that the debt to be provable against insolvent must be arising out of obligation incurred before order of adjudication or insolvent must become subject before discharge. The Division Bench held thus:

“The question therefore arises whether the decretal debt with regard to the costs in the application for leave to sue is a provable debt within the meaning of sub-section (3), section 46. Apart from authority, in order that a debt should be provable, it must appear that the insolvent was subject to such debt or liability at any time before his discharge by reason of any obligation incurred before the date of the adjudication. The debt or the liability would not be provable if the debtor becomes subject to it after his discharge, or if he becomes subject to it by reason of any obligation incurred after the date of the order of adjudication. In the present case the order for costs was passed after the date of the adjudication, and the obligation to pay the debt was incurred at the time when the order for costs was passed. The liability therefore to pay the costs accrued on 9th August, 1926, after the appellant was adjudged an insolvent on 15th July, 1924. Though the word “debt” includes a judgment-debt according to section 2(b) of the Act, the obligation to pay the costs is one which accrued after the date of the adjudication and in respect of which there could be no proof in insolvency, and which remained a debt enforceable against the insolvent after and notwithstanding his discharge.

According to the decision of Re Bluck : Ex parte Bluck (1) if a man brings an action he does not place on himself the obligation to pay the costs. The obligation arises when the judgment is given against him.

In British Gold Fields of West Africa, In re (2) it was observed as follows (p. 11):

“If the action against a person who becomes bankrupt is unsuccessful, no costs become p

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