063-NLR-NLR-V-28-In-re-the-Insolvency-of-JAYASEKERE.pdf
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Present: Jayewardene and Maartensz A.JJ.hi re the Insolvency of Jayasekere.
179—D. C. Galle, 507.
Insolvency—Refusal of certificatcSccond adjudication on same debt.
Where a person had been refused a certificate in insolvencyproceedings, a second adjudication cannot: be obtained on a d*htwhich had been proved in the first insolvency.
A. PPEAL from an order of the District Judge of Galle.
Soertsz (with him Jans*), for appellant.
March 2, 1926. Jayewardene A.J.—
This is an appeal against an order refusing to adjudge the appellantinsolvent. In caseNo.507 ofthe same Court theappellantwas ■
adjudged insolvent,buthe wasrefused a certificateon October 2,
1923. The present application was initiated by the appellantfiling a declarationofinsolvency on November 7last. Onthe *
10th of the same month one Dewarahandi Endoris de Silva fileda petition and applied that the estate of the appellant be adjudgedinsolvent and placed under sequestration in terms of section v10 ofthe Insolvency Ordinance, 1853. He stated that the appellantwas indebted to him in a sum of Ks. 1,000 on a promissory notedated January 3,1923. Theapplication was referred bythe *
learned District Judge. He said that the debt of the petitioningcreditor was n,ot a new debt but one of January, 1923, and wasproved in the previous insolvency proceeding in which the appellantwas adjudged insolvent on May 15, 1923. It is contended beforeus that the order of the District Judge is wrong as there is nothingin the Ordinance to prevent a second adjudication of a personwho has failed to obtain his certificate or discharge in a previousinsolvency. Reliance is placed on two local cases In re AbdulCadet Lebbe Abubakker LebbeJ and In re Frederick Pulley ex parteNeate,2 and in the latter of these cases the court said: “ It must betaken as law settled by decision in Morgan v. Knight :i that a secondadjudication against an undischarged insolvent is not ipso facto void;at most it may be voidable under certain circumstances.’* Thedecision in Morgan v. Knight (supra) has been accepted as layingdown the correct principle although the decision previous to it. 1
1 (133/) 4 S. G. G. 103.* {1887) S S. G. G. 118.
» (33) L. J. G. P. 168.
1926* •
28/24
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11980.
.Jatevab-DENS A. J.
Tav.t9.fhtjTnaolvency ,o■Jayasekere
were conflicting. Taking this to be the law. can it be applied tothe present case ? The petitioning creditor here was also thepetitioning creditor in the previous insolvency (No. 507) and hisdebt is the very same debt on' the strength ot which he obtainedf the adjudication of the appellant in the previous case. Under theEnglish law a second adjudication has been permitted when, afterthe first adjudication, the insolvent had been allowed to trade or 'carry on business without any interference by the assignee of thefirst insolvency, and he has incurred fresh liabilities and acquiredproperty, and in almost all the reported cases questions have been■ raised as to the right of the proved creditors of the first insolvencyto. share in the property acquired subsequent to such insolvencyand disclosed as assets in the second insolvency: Eve parte Ford,1Cohen v. Mitchell,1 2 In re Clark ex parte Beardmoref Bird v.
/ Phillpott* and the second of the local cases mentioned above alsou dealt with the same point.
I do not think there is any authority for holding that a secondadjudication can be obtained on a debt which has been proved,%r could have been proved, in the first insolvency. The order^refusing * to adjudge the appellant insolvent is on the facts of this$ease right, and the appeal must be dismissed.
.IMaartensz. A. J.—I agree.
Appeal dismissed.
1 (1876) 1 Ch. Div. 821.
■* (1890) 28 Q. B. D. 262.
8 (1894) 2 Q. B. 393, 821.* (1900) 1 Ch. Div. 822.