041-NLR-NLR-V-02-In-the-Matter-of-the-Insolvency-of-HAYMAN-THORNHILL.pdf
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In the Master ol the Insolvency of Hayman Thokhkcll.
D. C., Colombo, 1,822.
AppeaL-^Dday in forwarding record to Supreme Court—Revision—
Insolvency—Granting certificate in the absence of proper material.
After an appeal front an order of a District Court is perfected theDistrict Judge should not delay forwarding in due course the recordof the case to the Supreme Court; and it would be an act ofinsubordination on the part of a proctor to apply to the Judge notto do his duty in this respect.
The Supreme Court has the power of revising the proceedingsof all inferior courts. This power is in no way limited by theprovisions of section 132 of the Insolvency Ordinance.
The object at which the Supreme Court aims in exercising itspower of revision is the due administration of justice ; and whetherany particular person has complained against an order proposed tobe revised, or is prejudiced by it, is not to be taken into account inthe exercise of such power.
The District Court had granted an insolvent his certificatewithout having before it the assignee’s report or any materialregarding the status, conduct, dealings, &c., of the insolvent—
Held, that in the absence of such material the Judge was not ina position to say whether a certificate should be granted or notior of what class it should be, or whether, if a certificate was granted,any condition as to setting aside any portion of the insolvent’sfuture income should be annexed to the grant; and the order' granting the certificate was therefore wrong, and could not stand.
r I ''HE facts of the case are set out in the judgment of Bonseb,
-L c.j.—
Bawa, for insolvent.
27th September, 1895. Bonseb, C.J.:—
This case is a case of insolvency. The matter came up beforeus in appeal from an order of the Acting District Judge of Colombo,Mr. Templer, who had refused an application by a creditor forannulment of the adjudication.
The appeal was delayed, and it was delayed at the instance of.the insolvent, whose proctor moved the District Court that theappeal should not be sent up to the Supreme Court until after acertain date. It was an act of insubordination to apply to the Judgethat he should not do his duty, and I trust that such a proceedingwill never occur again. This Court must not be impeded in theexercise of its appellate jurisdiction, and will visit with punish-ment any attempt to do so. Notwithstanding the appeal, theproceedings went on in the District Court, and for some reason
18915.
September2 7.
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1806. or other were conducted in a moat perfunotory lhanner. WhenSeP'e'nber27. the matter came up before us in appeal the other day, weBonsbb, C.J. referred to the oareless way in which the papers in the proceedingsappeared to have been drawn up, but We held there was notsufficient to justify us in setting aside the order for theadjudication.*
But this attempt to delay the appeal called our attention to thesubsequent proceedings.
In view of the irregularities appearing therein, we orderedthat notice should be given to the partied that the case would bebrought up in revision.
There is no doubt whatever that this Court has the power ofrevising the proceedings of all inferior courts, and that it shouldhave such a jurisdiction is most necessary in the circumstances ofthis Colony, where justice is largely administered by Judges andMagistrates who are not professional men, who have in manycases but little experience of judicial work, and who, in the out-stations, have not the assistance of a strong Bar.
Mr. Bawa urged, first, that we could not exercise this power ofrevision, because section 132 of the Insolvency Ordinance limitedthe power of the Supreme Court. But I am of opinion that itdoes nothing of the sort.
Then he said that we ought not to exercise it in the presentcase, because no one complained of the grant of the certificate,and no one was prejudiced by the order. But the Supreme Courtis not to be governed in these cases by the wishes of the parties.The object at which this Court aims, in exercising its power ofrevision, is the due administration of justice, and thereforewhen we see in this case that the certificate has been granted tothe insolvent on absolutely no materials whatever, we think itour duty to send the case back to the District Court that theDistrict Court may deal with the matter in the way in which itought to deal with it, and may make its order upon proper andsufficient materials.
Insolvency is a question which effects the interests of theColony at large. It is not merely a question between theindividual creditors and the debtor, but one which affects thewhole trading community. That the insolvency law should beproperly administered is of the utmost importance to this Colony,and to this city in particular as a great commercial centre.
In this case no inquiry appears to have been made or attempted.It does not appear in the proceedings what the insolvent is,
•See I, N. L. R. 242.
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•whether he is a grader or a private person or a professional man.Not a Word as to his condition, or status, or means of livelihoodappears in any part of the proceedings.
Then,- no attempt seems to have been made to ascertain how itwas that the insolvent became insolvent, or when he first becameaware that he was insolvent; no books of account were producedbefore the Judge ; no cash account furnished ; and no report wasmade by the assignee. In the absence of these materials the Judgewas not in a position to say whether a certificate should begranted or not, and of what class the certificate should be, andwhether, if a certificate iB granted, any condition as to settingaside any portion of his future income should be annexed to thegrant.
In the present case the Judge has certified that the insolvencyarose from “ unavoidable losses and misfortunes.” I askedMr. Bawa to point out anything in the proceedings to supportthat finding, but he was unable to do so. There is absolutely nota tittle of evidence in the proceedings to justify it.
The order granting a certificate must be cancelled, and thematter must go back to.the District Court in order that the appli-cation for a certificate may be properly dealt with.
I wish to state that we do not’wish to express any opinionwhatever on the merits of the case. This gentleman may beentitled to a certificate or he may not, but we express no opinionwhatever on this question.
The District Judge must ascertain all the facts and circum-stances which led up to the insolvency, the position and conditionof the insolvent, and his conduct generally, and in particularwith regard to the action |brought against him by Packir Saibo.He will take into account the amount realized by the sale of theassets; and, after taking all these matters into consideration, hewill then adjudicate thereon.
The insolvent will have protection from arrest till the mattercomes before the District Court.
Withers, J.—
I entirely concur. The fact that there was no material uponwhich to determine the question of a certificate is quite sufficientground for setting aside this order and remitting the case for anew trial and adjudication.
The order brought up in review had really no foundationwhatever.
Neither by the assignee nor by the Judge has there been anyinquiry into the causes which led to the insolvency.
1895.
septemb&er. •BoNBKB, C.J.
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1806. I entertain no doubt whatever that we have the power to bringSeptember 27. ^his order up in revision in the way that has been done.
Withers, j. The Ordinance No. 1 of 1889 gives the Supreme Court exclusivecognizance, by way of revision as of appeal, of any matter ofwhich a lower Court has taken cognizance, with a view to thecorrection of any error committed by that Court to the substantialprejudice of any party affected by the error. The particularmatter came under our observation when the proceedings werebefore us in appeal.
I think the Aoting District Judge proceeded with great precipi-tancy. It was imprudent of him, to say the least, to take anyfurther step in the proceedings after the appeal to this Court fromhis order refusing to amend the adjudication had been perfected.
For my part, I question his power to do so, at all events in caseswhere the matter of the appeal concerns the right to'institute theproceedings. Our law is Nihil debere innovari appelatione inter-posita. Voet, lib. XLIX., tit. VII. begins thus:—AppeUationiseffectus, quod, suspendatur sententia omniaque in pristino staturelinqui debeard, de secundum hujus titvli incriptionem nihilinnovari.
No doubt the 75th section of Ordinance No. 1 of 1889 providesthat the execution of a judgment in appeal is not to be stayed, butit does not seem to me to follow therefrom that the action or matteris to be continued notwithstanding an appeal from an order whichaffects the validity of the action or matter.
Appeals of urgency of the kind will, I am sure, be promptlytaken up in this Court on good cause being shown, so that theremay be as little delay as possible in bringing the case to a finaldetermination in the lower Court.
The application to keep the record back was highly irregular,should never have been entertained for a moment, and shouldnever have been entered in the'journal of the Court.