This is the Defendants' appeal (enclosure 100) to Judge-in-Chambers against the order of the learned Senior Assistant Registrar dismissing with costs their application (enclosure 99) to strike out the Plaintiff's action under Order 18 r 19(1) (d) of the Rules of the High 1980 that reads:

"The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement, of any writ in the action, or anything in any pleading or in. the indorsement, on the ground that -

(d) it is otherwise an abuse of the process of the Court."

and may order the action to be stayed or dismissed ' or judgment to be entered accordingly, as the case may be.

[Page 1]

It is also convenient, at this juncture, before moving to the issues raised in this appeal, to refer to a further statutory provision, that is, section 38(1)(a) of the Bankruptcy Act 1967 (Act) , that reads:

"Where a bankrupt has not obtained his discharge -

(a) the bankrupt shall be incompetent to maintain any action (other than an action for damages in respect of an injury to his person) without the previous sanction of the Official Assignee;"

Mr Teja Singh contended on behalf of the Defendant that the Plaintiff was adjudged a bankrupt on 14.3.1988 . and that thereupon the cause of action rests with the Official Assignee (OA). He further contended that: the Plaintiff applied for the said sanction, on 18.5.1994, the OA granted the sanction upon conditions and the Plaintiff failed to. meet those conditions. "When the Plaintiff was made a bankrupt", he said, "his entire estate passed to the OA". "When he was discharged, his estate , did not revert to .him." The Plaintiff has no right -to maintain this action, he asserted. As an analogy, he said, Mr Teja. referred to s 33(11) of the Act , that reads:

"A discharged, .bankrupt shall, notwithstanding his discharge, give such assistance as .the [Page 2] Official Assignee requires in the realization and distribution of such of his property as is vested in the Official Assignee, and if he fails to do so he shall be guilty of a contempt of Court; and the Court may also, if it thinks fit, revoke his discharge, but without prejudice to the validity of any sale', disposition or payment duly made, or thing duly done subsequent to the discharge, but before its revocation."

Mr Teja continued his revelation of the law, as follows. Despite his discharge, the Plaintiff is yet beholden to the OA and to the Act. Under s 35 of the Act , only disclosed debts are released. The Plaintiff is yet duty bound to assist the OA to realise his assets to the OA. Where a Receiving Order & Adjudication Order has been annulled, all property reverts to the discharged bankrupt. However, where a Receiving Order has been discharged, the bankrupt's estate would not revert to the discharged bankrupt but would remain with the OA. Discharge would not relieve a discharged bankrupt of his duty under s 33(11) of the Act . Under s 24 of the Act , when the Plaintiff ' was, adjudged a bankrupt, his property became divisible among his creditors and vested with the OA. The discharge did not affect that position as the Plaintiff is still under a continuing duty to assist the OA in the realization of his assets. This action is a "thing in action" and [Page 3] therefore property within the meaning of s 2 of the Act. The cause of action vests with the OA and the Plaintiff is not competent to maintain this action.

Mr Joginder Singh for the Plaintiff responded as follows. The Plaintiff had capacity, in 1982, to file this action. However, the moment he was adjudged a bankrupt, in 1988, he ceased all further prosecution of his action and applied for the required sanction under s 38(1)(a) of the Act . On 18.5.1994, the Plaintiff obtained that sanction. Five (5) months later, the Plaintiff applied to "Court for an order of discharge." On 15.12.1994, the Plaintiff was granted an absolute order of discharge. Six (6) months later, the OA repaid the surplus funds to the P