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In the Matter of the Insolvency of Edwin Richard Peris.
D. C., Colombo, 1,855.
Insolvency—Appeal—Commencement of term of suspension of certificate.The term of suspension of a certificate to an insolvent commencesfrom the date of its award by the District Judge, and not from thedate of confirmation of the award in appeal.
HIS was an appeal by the insolvent against an order of Mr.
Dias, Acting District Judge of Colombo, refusing to issue
him a certificate awarded by his predecessor, but suspended fora term of three months. The grounds of the refusal and otherfacts material to this report are fully stated in the judgment ofWithers, J.
One Vyraven Chetty, a proved creditor, appeared as respondentin the case.
Domhorst, for appellant.
Wendi, for respondent.
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31st January, 1898. Withebs, J.—
The facts of the case are briefly these. On the 11th Octoberlast the Acting District Judge concluded his decision on the questionof a certificate to the insolvent in these words : “ I award him acertificate of the third class, which will however be suspended forthree months.”
An appeal was lodged against this order by the insolvent twodays after, and this Court affirmed the order.
Pending appeal a proved creditor applied to the lower Courtfor a certificate in Form R, schedule to Ordinance No.-7 of 1853, toentitle him to issue a writ of execution against the insolvent.
This is a form of certificate that the insolvent is not protectedby the Court from process against his person.
A certificate was taken out, and on the 7th December the samecreditor applied for a warrant against the insolvent’s person. Thisapplication was allowed. On the 11th January of this year theinsolvent applied for the delivery of the third class certificate whichhad been awarded to him.
The Acting District Judge refused this application in thesewords : “ Disallowed. The three months for which the certificate“ has been suspended have not yet expired. The three months“ must be reckoned from the date of the judgment in appeal, namely,“ the 19th November, 1897.”
On the same day the insolvent was brought up before the Courtunder the warrant which had been issued to arrest his person, andon the order of the Acting District Judge he was committed tocustody.
The present appeal is against the two orders made on the 11th, January.
I omitted to mention that on the 14th October an ex parte appli-cation was made on behalf of the insolvent, that protection shouldbe extended to him pending appeal. His application was allowed :thus he was protected by the Judge’s order until the 19th November.Between that date and the end of the three months from the 11thOctober he was without protection.
The simple question for us to decide is, whether the term of sus-pension dates from the order of the District Court suspendingthe allowance of the certificate for three months, or from the orderin appeal confirming the order of the Court below. I have nohesitation that the term runs from the date of the Court below.To suspend the allowance of a certificate for three months is tosay in so many words : “ Three months hence I will award you a“ certificate of a certain class.” At the end of that time theinsolvent is entitled to have the certificate issued to
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Jauary 31.Withers, J.
him if there has been no appeal. And if there is an appeal, theOrdinance, nowhere enacts that the term of suspension is to beextended to the order in appeal and to commence therefrom. TheJudge, no doubt in a proper case, would allow an insolventprotection for purposes of the appeal if protection were necessary.
The appeal, in my opinion, succeeds. The insolvent must bereleased from custody and a certificate of the third class delivered tohim.
I do not feel any difficulty. The order of the learned DistrictJudge pronounced on the 11th October, 1897, was clear andunambiguous.
There was first a finding that the insolvent was entitled to acertificate of the third class, and second an order that the issue ofthat certificate should be suspended for three months.
These were final orders by a competent Court, which were goodunless reversed in appeal.
The insolvent thought he had been hardly dealt with, that inappeal he would be able to show that he was entitled to theimmediate issue of a higher class certificate, but the Supreme Courtaffirmed the order of the District Judge.
That order, therefore, remained untouched, that on the 11thJanuary, 1898, a third class certificate should be given to theinsolvent.
I think the District Judge was wrong to refuse to issue thecertificate on the day specified in his order of the 11th October.
In the Matter of the Insolvency of EDWIN RICHARD PERIS