1. This is an appeal from the order of the learned Subordinate Judge of Amalapuram dismissing an application by a transferee decree-holder under Order 21, Rule 16 to recognise the transfer of the decree in his favour and to execute it against the judgment-debtors property. The decree that was transferred was a decree for costs in favour of an undischarged insolvent. He obtained the decree after the order of adjudication under the following circumstances. The order adjudging the transferor insolvent was passed in 1923. On a mortgage executed by him before the adjudication a suit was instituted in 1927 being O.S. No. 1 of 1927 on the file of the Subordinate Judges Court, Amalapuram. An ex parte decree was passed against him and he sought to set aside that decree. The learned Subordinate Judge who heard the application dismissed it on the ground that he had no right to present the application because he was an undischarged insolvent and the right to redeem vested in the Official Receiver. Against the said order an appeal was presented to the High Court. Their Lordships Reilly and Anantakrishna Aiyar, JJ., took the view that though the insolvent was not a necessary party to the suit, yet as the plaintiff therein chose to make him a party, he was entitled to be heard on his petition to get costs at least for having been unnecessarily impleaded. But since nothing would be gained by getting the suit heard, they did not go into the merits whether he had sufficient reason for not appearing on the date of the trial and dismissed the appeal. They however directed the plaintiff to pay the costs of the insolvent in the appeal and in the application out of which the said appeal arose. It was this decree for costs that was transferred in favour of the appellant transferee decree-holder.

2. The ground on which the Subordinate Judge declined to recognise the transfer was that under Section 28 (4) of the Provincial Insolvency Act the decree vested in the Official Receiver and the insolvent was not competent to transfer it. He followed a decision of this Court reported in Lingayya v. Venkatapathy AIR1935Mad694 . It was a decision of our learned brother Pandrang Row, J. In that case the insolvent succeeded to certain property as reversioner subsequent to the date of the order of adjudication and before his discharge. He sold the property to the plaintiff in that case who sued to recover possession on the strength of the said sale deed. The suit was dismissed on the ground that the property vested in the Official Receiver and that the insolvent had no title to convey. It was contended before Pandrang Row, J., that the dismissal was improper on the ground that inasmuch as the Official Receiver did not intervene, the insolvent had title to convey relying on the decision in Cohen v. Mitchell (1890) 25 Q.B. 262 but the learned Judge took the view that the doctrine of Cohen v. Mitchell (1890) 25 Q.B. 262 did not apply to cases arising under Section 28 (4) of the Provincial Insolvency Act and in coming to this conclusion he relied on the decision of the Privy Council in Kalachand Banerjee v. Jagannath Marwari. It is contended by Mr, Ramachandra Rao before us that this view is wrong, that the rule of English law as laid down in Cohen v. Mitchell (1890) 25 Q.B. 262 namely:

Until the trustee intervenes all transactions by a bankrupt after his bankruptcy with any person dealing with him bona fide and for value, in respect of his after-acquired property, whether with or without knowledge of the bankruptcy, are valid against the trustee,

has been applied to cases in India arising both under the Presidency Towns Insolvency Act and the Provincial Insolvency Act and if that rule is given effect to, the transfer in favour of his client ought to be recognised. He relied also on a number of cases including the latest Full Bench decision of this Court reported in Sobhanadri v. Nagayya AIR1938Mad420 , with which we shall presently deal.

3. The question therefore