029-NLR-NLR-V-59-V.-MANDIRAMPILLAI-and-another-Appellants-and-K.-SUBRAMANIAMPILLAI-and-oth.pdf
,102= BASUA YAKJE, C. J-—ltdiram pill ai v. Subramaniampiilat
1957', Present
r Bas’nayake, C.J./and L. W. de SUva/A.JV.LLANDIRAMPILLAI and another, Appellants, and K. STJBRAftlA-.• – NIAMPILLAI and others, Respondents?'•
S. G. 22 Inly.—D. G. Colombo, 5,9S3
insolvency Ordinance (Cap. S3)—Section 30—Procedure.• ■.
Under section 30 of tho Insolvency Ordinance tho insolvent is the party whoshould begin in proceedings in which ho is required to show cause against thp-volidity of his adjudication. It is not for tho petitioning creditor to begin.*
. Supramaniam Chetty v. GuJJoor & Co. (190S) 2 'WcernUoon 5, not followed.
A
aa-PPEAL from an order of the District Court, Colombo.
Sir Lalila Rajapakse, Q.G., with G. E. Chilly, Q.C., G. Renganathan and3Iiss Maureen Seneviratne, for Petitioners-Creditors-AppelJants. .
Chellagypah, with S. Sharvananda, for 1st Respondent-Respondent,
N. Kurn arasingham, with P. Navaratnarajah and S. Sharvananda, for2nd and 3rd Respondents-Respondents.
September 19, 1957. Basistayake, C.J.—
The question for decision in this appeal is whether the learned DistrictJudge was right in holding that the petitioning creditors should begin inproceedings under section 30 of the Insolvency Ordinance.
The learned trial Judge has ruled on the authority of SupramaniamChellyv. Gaffoor «£-• Go. 1 that the petitioning creditors should begin. Thatdecision is based on the case of Re Clay 2. Neither counsel was able tocite that report. Without an examination of that case we are unable tosatisfy ourselves that Re Clay is a decision which can be applied to theinterpretation of section 30 of the Insolvency Ordinance. – With great .respect wc are unable to agree with- the view taken in Supramaniam'Chetty's case. It is clear from an examination of section 30 that- theinsolvent is the party who. should begin in proceedings.in which he isrequired to show cause against the validity of his adjudication. Thelearned trial Judge was, therefore, in our opinion wrong in ruling that itwas for the petitioning creditors to begin. Learned: counsel for the
1 (100S') 2 1 Veerakoon's Jiepr.rts 5.‘•
r (ISol) 1 Fonblan'tue's Bankruptcy Cases 212.-
Jt. Is*. G. F£RXAXDO, J.—Alitn v. Asia l/tntna'103-
pctitioning creditors complains that thej' liavo been prejudiced by reasonof the wrong procedure adopted by the learned Judge’. We thereforeset aside all the proceedings on and after 12th September 1955 and directthat, if the insolvents wish to show cause, they should be required tobegin.•
• The appeal is allowed with costs.
1>. W. de Silva, A. J.—•
I agree..
Appeal allowed.