011-NLR-NLR-V-62-HABEEBDEANE-Appellant-and-INDO-EUROPEAN-EXPORT-LTD-Respondent.pdf
WEE liASOOJKIYA, J.—Habeebdeane v. Jtulo European Export Eld.
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Present : Weerasooriya, J., and H. N. G. Fernando, J.
HABEEBDEiNE, Appellant, and 1NDO EUROPEAN EXPORT LTD.,
Respondent
jS. C. 354—Application in revision in D. C. Colombo, 5991 jInsolvency
Insolvency Ordinance {Cap. 36)—Protection granted to insolvent—IVithdratval thereof—Permissibility—Sections 36, 151.
Unclor section 36 rend with section 151 of the Insolvency Ordinance aninsolvent who has duly surrendered after adjudication is entitled to protectionduring tho period of his examination. Such protection cannot bo withdrawnunless he is shown to have committed any of the offences enumerated insection 151.
PPUCATION to revise an order of the District Court, Colombo.
M. T. M. Sivardeen, for insolvent-petitioner.
Cf. D. C. Weerasinghe, for petitioning creditor-respondent.
Cur. adv. vult.
September 8, 1959. Weekasooriya, J.—
Tho petitioner is an adjudicated insolvent. In tho course of hisexamination at the second sitting, held on the 9th April, 1957, he statedthat a business conducted by him under the namo of the Overseas TradingSociety had been given over to one W. A. Peiris. The Court thereuponissued notice on Peiris to produce the books of account relating to thatbusiness. This notice could not be served on Peiris although it wasre-issued several times, and despite an open warrant for his arrest andhis having been proclaimed all attempts to secure his attendance inCourt have so far been of no avail. In the meantime the second sittingand further examination of the petitioner stand adjourned. On the 12thMay, 1959, the District Judge made order withdrawing the protection
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Edwin v. De Silva
granted to the petitioner stating as the reason for the order as follows :
“ I am inclined to believe that the Insolvent could if he wishes serve theattachment on W. A. Perns ”. The petitioner now applies to have thiaorder revised.
With regard to the belief expressed by the learned Judge, there seemsto be nothing in the proceedings to indicate that the insolvent is in abetter position than the Fiscal and Police authorities to get at Peiris.But even if the belief is well founded it does not appear to be a groundfor withdrawing the protection. Under section 36 read with section 151of the Insolvency Ordinance (Cap. 82) an insolvent who has duly sur-rendered after adjudication is entitled to protection during the periodof his examination unless he is shown to have committed any of theoffences enumerated in section 151. This was also the view taken inFernando v. Miller da Co. et al.1. There is no suggestion, and far lessany proof, that the petitioner has committed any of the offences enu-merated in section 151. The order withdrawing protection is set aside,and the District Judge is directed to grant protection in terms of section36. The certificate in form R which issued against the petitioner onthe application of the petitioning creditor-respondent on the withdrawalof protection is discharged.
The petitioner will be entitled to the costs of this application.
H. N. G. Fernando, J.—I agree.
Application allowed.