MARIKAR v. SUPPIAH PULLE

135-NLR-NLR-V-30-MARIKAR-v.-SUPPIAH-PULLE.pdf


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1928
Present: Garvin and Lyall Grant JJ.MARIKAR v. SUPPIAH PULLE.
180—D. C. (Inly.) Colombo, 3,899.
Insolvency—Judgment-debtor on ball—Adjudication in Insolvency—Freedom from arrest—Ordinance No. 7 of 1853, s. 36.
When a judgment-debtor, who is on bail pending inquiry into hispetition for discharge under section 306 of the Civil ProcedureCode was adjudicated an insolvent,—
Held, that he was not in custody within the meaning of section36 of the Insolvency Ordinance and that he was entitled to theprivilege of freedom from arrest until his examination is finished.In re Insolvency of Punchihewage Don Juanis1 followed.
j^PPEAL from an order of the District Judge of Colombo
Tisseveresinghe (with Marikar), for appellant.
Peri Sunderam (with G. M. de SUva), for respondent.
December 20, 1928. Garvin J.—
The facts material to this appeal are these:—In execution of ajudgment obtained by the respondent in case No. 24,250 of theDistrict Court of Colombo the appellant was arrested. He wasproduced .in Court on March 6, 1928, and committed toj prison.On the following day he filed papers under section 306 and movedthat he be released from arrest on the ground that he/was notpossessed of property which could be sold in execution of the decree.The Court fixed the inquiry into the application for May 28, and inthe meantime allowed the accused to stand out on bail in Rs. 750.The inquiry was postponed for July 9, 1926. In the meantime, byits order of July 5, 1928, the District Court in its Insolvency Juris-diction adjudicated the appellant an insolvent and appointed adate for the insolvent to surrender and conform. On July 5 theappellant duly surrendered himself and consented to being adjudi-cated. On the 13th of that month the respondent to this appeal,who is the judgment-creditor in case No. 24,250, moved “that theinsolvent’s protection be withdrawn as the same has been allowedex parte without notice to him.” This matter came up before th.elearned District Judge, who made order as follows :—“ In the
HC.L. R. 23.
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circumstances the only order I can make in this case is to withdrawthe protection I have granted to the insolvent.” The presentappeal is from this order.
Section 36 of the Insolvent Estates Ordinance, No. 7 of 1853, enactsas follows :—“ If the insolvent he not in prison or custody at thedate of the adjudication, he shall be free from arrest or imprisonmentby any creditor in coming to surrender, and after such surrenderduring the time by this Ordinance limited for such surrender, andfor such further time as shall be allowed him for finishing hisexamination, and for such time after finishing his examination untilhis certificate be allowed, as the Court shall from time to time byendorsement upon summons of such insolvent, or by writing underthe hand of the Judge of such Court, think fit to appoint.” It iscontended for the appellant that at the date of adjudication he wasnot “ in prison or custody,” and that if that contention is admittedthe se’ction confers a protection upon him, which it was not com-petent for the Court to withdraw. In short, that if at the dateof the adjudication the insolvent be not in prison or custody hereceives protection from arrest at least up to the time of finishinghis examination, from the Act itself, which the Court has discretionneither to grant nor withhold or withdraw. Both these pointsappear to be concluded by the case of ex parte Leigh J As to thefirst of these two questions, it was held that the custody of bail onarrest is not custody within the meaning of the statute, at least solong as the bail permits him to be at large. There can be no questionhere that at the date of the adjudication the appellant was at largeand was free to move about as he wished. That is not custodywithin the meaning of the Ordinance.
It remains to consider whether the appellant was entitledabsolutely to protection till the conclusion of his examination or,whether it was discretionary for the Court to grant or withhold suchprotection or to withdraw it after it had been granted. On thispoint the judgment in ex parte Leigh (supra) strongly supports thecontention of the appellant. It is true that of the determinationthe question was arrived at with reference to the Statute 5 (Geo. II.c. 30). But it seems to me that upon a consideration ofsection 36 we are driven to the same conclusions. The sectiondeclares that “ if the insolvent be not in prison or custody at thedate of the adjudication, he shall be free from arrest or imprisonmentin coming to surrender, and after such surrender during the timelimited to surrender, and for such further time as he is liable for hisexamination.” The section then proceeds “ and for such time asshall be allowed him for finishing his examination, and for such timeafter finishing his examination until his certificate be allowed, asthe Court shall from time to time by endorsement upon the summons1(182-3) 1 Glyn and Jameson 264.
1988
Garvin J_
Marikar
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1988
Oabvin J.
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of such insolvent, or by writing under the hand of the Judge of suchCourt, think fit to appoint.”. It seems to me that the only stage atwhich any question of the protection from the Court arises is afteran insolvent has finished his examination. In the interval betweenthe examination and the certificate he cannot claim protection ofright, and he will enjoy protection for such period or periods as theCourt shall from time to time grant him.
This view of the section is in accordance with the judgment ofLawrie J. in In the matter of the Insolvency of Punchihewage DonJuan.1 “ I read the Ordinance,” said Lawrie J. “ as giving anunconditional privilege and freedom from arrest until the examina-tion is finished to all who were not in custody at the time theywere adjudicated insolvent.”
The judgment of the learned District Judge has been largelyinfluenced by the submission that the Court had no jurisdiction toenlarge him on bail pending the inquiry into his petition for releasefrom arrest. Upon that point I do not desire to express anyopinion. It is sufficient for the determination of the matter beforeus that at the date of his adjudication the appellant was neither idprison nor in custody within the meaning of section 36, and that hethereupon became entitled to the privilege of freedom from arrestuntil his examination was finished. That privilege is conferred bylaw, and it is not within the power of the Court to deny orwithdraw it. It is customary for the Court to issue a writingintimating that an insolvent is entitled to protection, and it iscustomary to refer to such a writing, whether it be a separatedocument of itself ,or an endorsement upon a process as theprotection. The true legal effect of such a writing is that it is anauthoritative statement that in the case of a particular insolventthose circumstances exist which entitle him to protection, and theprincipal purpose of such a writing is to satisfy an officer seeking toarrest him, that he is protected by law. I refrain from any expres-sion of opinion on any of the matters arising upon the petition forhis discharge filed in D. C. 24,250 by the appellant.
The order under appeal is set aside, with costs to the appellant.Lyall Gkant J.—I agree.
Set aside.
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