029-NLR-NLR-V-71-JOHN-KEILL-THOMSON-WHITE-LTD.-Appellant-and-T.-D.-R.-KARUNARATNE-Respondent.pdf
ABEYESUNDERE, J1—John Keill Thomson White Ltd. t. Karunaratne 119
1968Present: Abeyesundere, J., and Samerawickrame, J.
JOHN KEILL THOMSON WHITE LTD., Appellant, and
T.D. R. KARUNARATNE, Respondent
S. C. 233/66 (Inty.)—D. C. Colombo, 6084fl
Insolvency Ordinance—Sections 12 and 26—Adjudgment of a person as insolvent—Subsequent application for annulment of it—Quantum of evidence.
Where a person is adjudged insolvent under secton 26 of the InsolvencyOrdinance, such adjudgment cannot be annulled if there is sufficient evidenceestablishing the fact that the petitioning-creditor was in a position to sue outexecution upon the judgment he had obtained in his favour.
^PPEAL from an order of the District Court, Colombo.
//. V. Jayewardene, Q.C., with D. J. Tainpoe, for the Petitioner-Appellant.
No appearance for the Insolvent-Respondent.
March 22, 1968. Abeyesundere, J.—
In this case the respondent was by order of the learned District Judgedated 25th March, 1966 adjudged insolvent under Section 26 of theInsolvency Ordinance. The respondent was deemed to have committedan act of insolvency under Section 12 of the Insolvency Ordinance.Thereafter the respondent filed objections to the aforesaid adjudgmentand the learned District Judge after inquiring into the objections madethe order dated 8th December, 1960 annulling the adjudgment madeunder Section 20 of the Insolvency Ordinance. The appeal of thepetitioner in the insolvency proceedings is from that order of the learnedDistrict Judge.
The reason given by the learned District Judge for making the orderappealed from is that the petitioner-creditor had failed to establish thefact that he was in a situation to sue out execution upon the judgmenthe had obtained in his favour and against the respondent. The evidenceof Dharmasiri Ekanayaka given on behalf of the petitioner-creditorestablished that the petitioner-creditor was the holder of a decree enteredon 11th June, 1962 against the respondent, that the petitioner-creditorwas in a situation to sue out execution upon that decree, that there wasnothing due from the petitioner-creditor by way of set off against thatdecree, and that the respondent had not paid, secured, or compounded forthe amount of that decree. We are of the view that the evidence ofDharmasiri Ekanayaka was adequate to establish the fact that the decreeholder was in a position to sue out execution upon the decree in his favour-
120ABEYESUNDERE, J.—John Keill Thomson White Ltd. v. Karunaratne
Further in the statement of objections filed by the respondent there isnothing to indicate that there is any legal impediment to the plaintiff’sobtaining writ of execution. The learned District Judge has referred tothe provisions of Section 347 of the Civil Procedure Code which requirethe court to cause the petition of application for execution to be servedon the judgment-debtor. Those provisions, however, do not constitute alegal impediment to the plaintiff’s obtaining a writ of execution.
For the aforesaid reasons we set aside the order of the learned DistrictJudge dated 8th December, 1966. The appellant is entitled to the costsof the appeal and of the inquiry in the District Court.
iSamerawickkame, J.—I agree.
Order set aside.