GROUNDS OF DECISION

1. The defendant made an application under O. 13 r. 8 of the Rules of the High Court 1980, to set aside the judgment in default of defence dated 23rd October, 1990; to stay the execution of the said judgment and for leave to file and serve the defence within 2 weeks of the order. The application is supported by the affidavits of the defendant, affirmed on 29th July, 1994 and 21st March, 1995. There is no affidavit in opposition.

2. At the onset of the hearing the counsel for the plaintiff draws the attention of the Court to the fact that the defendant had been adjudged a bankrupt on 23rd January 1995 and had remained an undischarged bankrupt to date. A bankrupt is not competent to bring an action in Court unless he has a prior sanction from the Official Assignee. No such sanction has been obtained in the case. [2]

3. Learned counsel for the defendant replied that the defendant had obtained the sanction from the Official Assignee on 28th July, 1996 but failed to serve a copy thereof on the other party or the Court. It is observed that the said sanction was given only after the action had commenced. The counsel admitted that the sanction was received from the Official Assignee subsequent to the filing of the action.

4. That being the case the application is bad in law; it is not an irregularity which is curable, it goes down to the root of the matter that makes it pointless to proceed with the hearing on the merits of the application. The Court held that the application is bad in law and it must be dismissed.

5. The application is dismissed with costs.