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Present; Bertram C.J., De Sampayo, Porter, Schneider, and
■ In re Goonewardene.
ISO—D. G. (Irity.) Galle, 493.
Code, s. 756.
Per Fun, Court—In appeals in insolvency -proceedings theappellant need not give security for costs of appeal.
The insolvent was & resident of Galle. In November, 1921, heestablished a business at Matara as |a bontique-keoper. He closedthis business in March, 1922, and continued to live in the Gallehouse thereafter. The District Judge annulled the adjudication ofinsolvency, as during the six preceding months the appellantresided within the jurisdiction or the District Court.
Held (per Db Sampayo and Garvin JJ.) that in the circum-stances the insolvent did not ceaso to be a resident of Galle duringthe time he was carrying on business at Matara.
A man's residence is not dependent altogether on his physicaloccupation of any house.
T HE appellant was adjudged an insolvent on May 9, 1922, the.
Court exercising jurisdiction on this behalf on facts urged inan application by a petitioning creditor.
The respondent to this appeal made an application to annul the •adjudication on the ground that the Court had no jurisdiction, inthat the insolvent had not resided within the jurisdiction of thisCourt for six months prior to the adjudication. The District Judgeon July 24, 1922, allowed the application of the respondent annullingthe adjudication and condemning the petitioning creditor to pay the'costs of the applicant.
The insolvent appealed. As no security for costs of the respondentwas given by the appellant, the District Judge ordered the appeal toabate. The insolvent moved the Supreme Court to call for the case.The Supreme Court directed the District Judge to send up the appeal,and ordered that it be listed for argument subject to the objection tobe taken at the argument.
The order of the District judge (T. B. Bussell, Esq.) annullingthe adjudication was as follows: —
The question is whether the insolvent was residing in Galle for theprevious six months as he says, or whether from last November to Marchof this year he was living and trading in Matara. That he was tradingis admitted, and the applicant has adduced ample evident that daring
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thin period lie was not only recognised by others as a man of Mrtire(B 1 and B 8), but also that he described himself as snch (see B 2 whichis written entirely in his handwriting). Insolvent admits that it wasquite correct to describe him as “ of Maters.’’ because he had hisbusiness there, but he has called a number of witnesses and put in anumber of documents to prove that all the time he was living in Galls .As Mr. de Vos, for the applicant, has pointed out, of the documentsI 1 to I 6 relied an by the insolvent, only. I 1, the latest poll-tax receipt,,is relevant. All the others were written prior to the period wheninsolvent was trading in Matara. Tnis is so, but I 1 proves that onMarch 8, 1922, he paid his poll-tax in Galle. Poll-tax, however,is not always paid in the actual place where a person resides.' Insolventmay have simply followed the custom of the previous years. It ianot denied, furthermore, that he is keeping- a mistress in Galle, and haa.done eo for several years past, and the Peace Officer and the VidaneAraaficlii both say. that they always regarded him as a resident of Galle.But the rent of the present house where the mistress is, and where shehas been since January last; is being paid by her; and no$ by the insolvent,and the insblvent’slast witness,Kudahetty,says, that'the insolvent
meetly lived in Matara, and that he only occasionally came to Galle to eeehie mistress. Thisis almost .certainly thetruth.Thebusiness in
Matara was, on the insolvent’s own showing,' not a large one. It is not* business he would have been able to leave in charge of employeeswhilst he remained idle in Galle. The question, – therefore, is . ** cana man who has his business in one place, and resides there for the mootpart, and only occaeionally visits another place to see a mistress besaid to live in the latter plaoe? " I do not think he can. Insolvent’scounsel urged thatno one wasprejudicedby theinsolvent having
taken proceedings in this Court, and that in fact, bb most of his creditorswere in.Galle, it was most convenient that the proceedings should hetaken here. ' He quoted authorities to. shoyr that according to Bnglishlaw the present plea of want of jurisdiction should not be entertained,and that in any case the Supreme Court was likely to exercise itspower to order the – proceedings to. be taken here. The InsolvencyOrdinance, however,sets out thejurisdiction,and inmyopinion it ia
only the Supreme .Court that can give jurisdiction to another Court.It is not – for this Court to give itself jurisdiction. On the, simple issuewhich I have to decide in this inquiry,. I think I must find in favourof the applicant, and hold that this Court has no jurisdiction. I there-fore direct that the adjudication be annulled. Costs to be paid by boththe insolvent and the petitioning creditor.
Keuneman, for the respondent (creditor), took the preliminaryobjection that no security had been given by the appellant for costsof the respondent. Section 6 of the Insolvency Ordinance, 1858,provide that appeals in insolvency cases shall be prosecuted “ undersuoh regulations as now exist or shall be hereafter made by theSupreme Court. ” The Supreme Court has not made special rulessince 1858. -The. old rules and orders governed appeals in insolvencyproceedings. The rules and orders were abolished by the CivilProcedure Code in 1889. Insolvency appeals are now governed inthe absence of special rules by chapter LiVlll. of the Civil ProcedureCode. See Interpretation Ordinance, No. 21 of 1901, section 10 (1).Otherwise there will be no provision as to appeals in insolvency
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proceedings. In In re Abdul Aziz 1 the Supreme Court did not considerthe effect of section 6 of the Civil Procedure Code. “ Every appli-cation to a Court for relief or remedy obtainable through the exerciseof the Court's power or authority, or otherwise to invite itsinterference, constitutes an action. ” (Section 6.) Bonser C.J. isof opinion that insolvency proceedings are not actions. But contrasee the judgment of Middleton J. in Salgado v. Peris.9 Counselalso referred to In re Phillippo.s
Soertsz, for insolvent-, respondent, not called upon.
March 12, 1923. De Sampayo J.—
This is an appeal in an insolvency case taken by the insolvent.When the appeal first came before my brother Schneider andmyself, a preliminary objection was taken by counsel . for therespondent' to the appeal being heard, as no security in appeal hadbeen given by the appellant, and in view of certain decisions ofthis court, we thought it right to refer the case to a fuller Bench. .
The argument on behalf of the respondent is that the. provisionsof section 750 of the Civil Procedure Code with regard to securityin appeal- are applicable to insolvency cases. The reasoning bywhich this argument is supported may be summarized as follows: —Section 6 of the Insolvency Ordinance provides that appeals in •insolvency cases “ shall be brought on and prosecuted in suchmanner and shall be subject to such regulations as now exist orshall be hereafter made by any rule or order of the Supreme Court.
No special rules with regard to insolvency appeals having beenmade by the Supreme Court, the general rule as to security in therules and orders framed under section 51 of the Charter of 1833,and existing at the date of the Insolvency Ordinance, governed;these rules and orders having been absolutely repealed by theCivil Procedure Code, the provisions of section 756 of that Codowere by force of the principle stated in section 10 (1) of the Inter-pretation Ordinance, No. 21 of 1901, took the place of the old rulesand orders, and were, therefore, now applicable to all insolvencyappeals. It is clear, however, that the provisions of section 756 andconnected sections have regard only to appeals in civil actions,whether of regular or summary procedure. But insolvencyproceedings do not come under either of these descriptions of“ actions. ’’ They constitute a ‘‘ matter ” of a special' kind, andnnlftSB the Supreme Court makes any rule in exercise of its powersunder section 6 of the Insolvency Ordinance, it appears to me thatthere is nothing to require security to be given in insolvency appeals.Apart from this consideration, the point is covered by authority.It is true that In the Matter of the Insolvency of PhiUippo (supra)
1 (1895) 1 N. L. R.196.* (1909) 12 *7. L. R. 379.
8 (1890) 9 S. O. O. 120.
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In re ■<3oonewar-dene
a bench of two Judges held that the provisions of the Civil Procedure
Code relative to the giving of security for the respondent’s costs
of appeal were applicable to appeals in insolvency proceedings,
but in the lpter case of Abdul Aziz (supra) the Full Court expressly.
considered and dissented from that view, and decided that security
was not required in insolvency appeals. This decision is binding
upon us, and in my opinion the objection should be over-ruled and
the appeal should be heard. I think the appellant is entitled to
the costs of the argument.
Bertram C.J.—I agree.
Porter J.—I agree.
Garvin J.—I agree.
The appeal was subsequently listed for argument on the meritsbefore De Sampayo and Garvin JJ.
April 23, 1923. De Sampayo J.—
This is an insolvency Case in which on the application of therespondent the adjudication of the insolvent was annulled onthe ground that the District Court of Galle had' no jurisdiction.The Ordinance provides that insolvency proceedings should beinitiated in the Court within whose jurisdiction the insolventresided six months previously. It appears that the insolventwas a resident In Galle for many years. He had a mistress in ahouse at Galle, -where he himself lived with his mistress. But inNovember, 19211 he established a business .at Matara as a boutique*keeper, and, the respondent’s standpoint is that the insolventthen ceased to be a resident at Galle, and became a resident atMatara. That business, however, lasted a short time. It wasclosed in March, 1922, and the insolvent would appear to havecontinued to be in the Galle house from that time. The DistrictJudge has found that .during that interval from November toMarch the insolvent resided at Matara, and as he had not then onthat footing resided within the jurisdiction of the District Courtof Galle for six months preceding the application the Court hadno jurisdiction. But I cannot agree with the District Judge'sfinding of .fact. A man’s residence is not dependent altogetheron his physical occupation of -any house. It may be that inconnection with his new business the insolvent lived in the boutiquewhenever in Matara. But nothing in the case shows that heceased to. be a resident of Galle. His house as a matter of factwas at Galle, and-I think that all the circumstances justify un inference
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that for till the purposes of the Ordinance the insolvent was a UM.resident of Galle. This being the view I take of the faots, it Da 8a*tay»is not necessary to consider the further question introduced,whether the respondent has a right to make the application for jnfmthe annulment, as he has not proved bis claim and has not beoome *t°%££ar‘a proved creditor.
I would set aside the order annulling the adjudication, andwould send the case back for proceedings in due course. Theappellant, I think, is entitled to his costs of appeal.
Garvin J.—I agree.