DE KRETSER J.—Fernando v. Miller & Co.
1939PresentHearne and de Kretser JJ.
FERNANDO v. MILLER & Co. et al.
. 59—D. C. Chilaw, 46.
Insolvency—Right of an insolvent to protection—Power of Court to withdrawprotection—Last examination—Insolvency Ordinance, ss. 36 and 151(Cap. 82).
The protection granted to an insolvent by section 36 of the InsolvencyOrdinance is a privilege which the Court has no right to withdraw exceptin the exercise of the powers conferred on the Court under section 151 ofthe Ordinance.
^/^PPEAL from an order of the District Judge of Chilaw.
N. E. Weerasooria, K.C. twith him A. E. R. Corea), for insolvent,appellant.
November 21, 1939. de Kretser J.—
The insolvent in this case was duly granted protection, and he had beenpartly examined and the examination adjourned for a certain date. Onthe adjourned date the insolvent was absent but forwarded a telegram tothe Court intimating that he was ill and that a medical certificate wasbeing sent. The District Judge then withdrew the protection granted tothe insolvent and in his order stated that the insolvent’s conduct hadbeen unsatisfactory in certain respects which he specified.-
Thereupon two of the creditors moved to have a certificate in Form Rissued and, after some postponements, their applications were allowed.On the insolvent being arrested an application was made for his releasebut was refused. He therefore appealed to this Court and was grantedprotection pending the appeal. In spite of an order that the certificatemeeting should be duly held notwithstanding the appeal, the certificatemeeting has not in fact been held as yet.
We decided that whatever view we may take of a submission on the lawmade by Counsel, we would direct the District Judge to grant the insolventprotection until the certificate meeting.
The^point of law taken by Mr. Weerasooria was that the Court had nooption in the matter, and that the insolvent was entitled to protection asof right. He quoted the case In the Matter of the Insolvency of Punchi-hewage Don Juanis1 in which Lawrie. J. held that the protection grantedby section 36 of the Ordinance was a positive enactment of a privilegewhich it is not within the power of a District Court to take away, and thatthe mere announcement that the insolvent was not protected was unavail-ing and ultra vires of the District Judge.
Our Insolvency Ordinance copies the provisions of 12 & 13 VictoriaChap. 106, s. 112, and that in turn is almost identical with the terms of6 George IV., Chap. 16, s. 117 under which section it was held—in thecase of Ex parte Leigh (2 Glyn and Jamieson’s Reports, p. 264)—by theLord Chancellor after consultation with the Lord Chief Justice, that a
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DE KRETSER J.—Fernando v. Miller & Co.
bankrupt derived his right to protection from arrest from the terms of thestatute and independently of the Commissioner’s certificate. And inPrice’s Case (3 Vessey & B. p. 23) it was held that a bankrupt wasprotected through the whole period of his examination enlarged by theCommissioners, though they had omitted to endorse the adjournment onhis summons. In both cases it was indicated that the endorsement wasonly necessary in order that the bankrupt might show on arrest that hewas entitled to release, and also to fix the liability of the arresting officerin the penalty provided by the Ordinance.
Jt would seem therefore that there is authority both in the Englishreports and in our reports to support the position taken up by Mr. Weera-sooria. The insolvent is accordingly entitled to be protected. TheDistrict Judge perhaps intended to act under section 151, but if so theoffences which he thought the insolvent had committed must haveappeared on the previous day when the insolvent had been partlyexamined; and that was the proper occasion for him to exercise thepowers granted to him by section 151. He would then have been actingin the presence of the insolvent and his proctors, and would no doubthave given them an opportunity of showing cause. But he did not acton that occasion, and on the adjourned date nothing more appeared thanthat the insolvent was absent. The medical certificate did arrive in thecourse of that day and showed that the insolvent was ill with dysentery.
1 think therefore the insolvent is entitled to protection from arrest until"the certificate meeting. The protection will issue accordingly. There isnothing to indicate that the respondents were responsible for the actiontaken by the Judge and therefore no order for costs will be made.
Hearne J.—I agree.
FERNANDO v. MILLER & CO. et al