105-NLR-NLR-V-23-In-re-THE-INSOLVENCY-OF-ABDUL-CADER.pdf
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Present: De Sampayo and Porter JJ.
In re The Insolvency of Abdul Cader.
40—D. C. Kandy, 1,628.
Insolvency—Adjudication of insolvency on ties application of insolvent—
Annulling of order.
The insolvent applied for an adjudication of insolvency statingthat he was able to pay five shillings in the pound, and the DistrictJudge made order accordingly. Thereafter, at the certificatemeeting, the District Judge (the successor of the Judge who madethe first order) made order annulling the adjudication, on theground that there was not sufficient proof that the insolvent wasable to pay five shillings in the pound.
Held, that the order annulling the adjudication was wrong.rjMHE facts appear from the judgment.
Soertsz, for the appellants.
Weerasooriya, for the respondent.
June 20,1922. De Sampayo J.—
This is an appeal in the matter of the insolvency of one MannAbdul Cader. The appeal is taken by certain proved creditors froman order of the District Judge annulling the adjudication. Itappears that on June 2, 1920, the insolvent petitioned againsthimself. He annexed to his affidavit a list of-his assets and theparticulars of his liabilities, and stated that in view of these materialshe was able to pay five shillings in the pound. The District Judge,who was then presiding in the District Court, after considering thepetition, the affidavit, and the list of property, made an orderadjudicating the applicant an insolvent. Thereafter, the usualproceedings took place. At the first sitting of creditors a largenumber of creditors came and proved their claims, and at the secondsitting the insolvent was examined. The second sitting was thenclosed, and the Court fixed the certificate meeting for March 16 ofthe present year. The opposing creditors gave notice stating theirgrounds of opposition, and the whole matter of the grant of thecertificate to the insolvent came on for consideration on the daymentioned. Certain arguments took place, and the Court reservedits order. The District Judge in his order stated the facts upon
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1922.
Da SampayoJ.
In re TheInsolvency ofAbdulCoder
which he found that, if the matter of the application for a certificatewas to be considered, he would have refused a certificate. Buthe concluded his order by annulling the adjudication itself, on theground that there had not been sufficient proof of the sufficiency ofthe insolvent’s assets to pay five shillings in the pound, that is tosay, the District Judge considered that the Judge who adjudicatedthe insolvency ought not to have been satisfied with the materialsbefore him for that purpose. I cannot see how such an order couldbe made in the circumstances of the case. Section 26 of the Insol-vency Ordinance directs that in a petition filed by a person againsthimself, the Court; upon proof of the filing of a declaration ofinsolvency and the sufficiency of his available assets to the extentrequired by the Ordinance, shall adjudge such person insolvent.It will be noticed that proof is required of two things, namely, of thefiling of a declaration and of the sufficiency of the assets. It cannotbe contended that there must be proof of the filing of a declarationapart from, and independently of, the actual fifing of a declaration,which is a matter of record in Court. The other matter to be provedis on the same footing, and it appears to me that the whole- provisionof section 26 refers back to the sections providing for the insolvent’.petitioning against himself and- verifying the necessary facts.Section 25 of the Insolvency Ordinance enables the District Judgeto call for further proof before he makes the order for adjudication,that is to say, he may examine the person who is/petitioning againsthimself or any other person as to the probable value of the propertyavailable for the payment of debts. But if the Court does not thinkthat such additional proof is necessary, I should say it could onlyexercise its discretion and accept the materials already put beforeit as sufficient, and make the order for adjudication. The case ofMajeed v. Chetty1 has been cited as an authority on behalf of therespondent. It will be found that that was a case in which an appealwas at once taken from the order adjudicating the petitioner aninsolvent. This Court found that the material then was insufficient. to satisfy the Court that the petitioner was able to pay the necessaryproportion of his liabilities out of the assets that he disclosed. Thatis quite different from the present case, where the District Judgemust be taken to have been satisfied, and where no appeal was takento this Court to interfere with the order of adjudication then made.The present order is not one made by the Court of Appeal, but bythe same Court, by a successor of the District Judge who made theoriginal order, and without any particular application before himfor the purpose of annulling the adjudication. As a matter of fact,it would seem that the District Judge thought that in annullingthe adjudication he was doing something adverse to the insolvent,whereas he would be granting much relief to the insolvent. Thatis far from the District Judge’s intention, however, because his1 5 Bal. Notes of Cases.
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judgment sets out at length good grounds for refusing a certificateif that was the matter for him to decide. I think the order madewas wrong, and weshould set it aside. At the same time, the proceed-ings should, I think, go back in order that the District Judge maygive effect to his findings in connection with the insolvent’s conductin the management of his affairs and affecting his right to a certi-ficate of conformity. We allow the appeal, with costs, and sendthe case back accordingly.
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DE SiBEPATO
J..
Jrt re TheInsolvency ofAbdulCoder
Poster J.—I agree.
Appeal allowed.