The adjudication in insolvency affects the provability of a debt, and the creditor may need to seek leave of the Court to file a suit after insolvency.

Beasley, C.J.

1. This is an appeal from a judgment of Waller, J., sitting in insolvency. The Official Assignee allowed the claim of the appellant here which was in respect of a debt alleged to be due to her on a promissory note by the insolvent. A creditor preferred an appeal from the order of the Official Assignee to Waller, J., and he allowed the appeal.

2. The facts can be briefly stated: The insolvent owed the appellant money on a promissory note. The last payment was a payment of interest on 20th October 1925. No further payment was made by the insolvent and the debt would have become and did become barred by limitation on 20th October 1928. Up to that time the appellant had taken no steps to enforce her claim against the insolvent on the promissory note. The 20th October which was a Saturday, was a public holiday and the High Court was closed. The next day, the 21st, was a Sunday and the Court was closed that day also. On 22nd October the appellant could have filed a suit against the insolvent upon the promissory note and enforced her claim because by reason of the provisions of Section 4, Limitation Act, the insolvent could not successfully set up as bar to the suit the Limitation Act. Section 4, Limitation Act, is as follows:

Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

3. However on the morning of 22nd October 1928 the insolvent was adjudicated an insolvent and it is admitted that no steps were taken thereafter with regard to this claim by the appellant until she preferred her claim in the insolvency. Waller, J., held that, as the claim on the promissory note was barred on 20th October, and as the appellant had not filed a suit on 22nd October, the first available day after that, her claim was one which could not be proved in the insolvency and accordingly allowed the appeal.

4. What we have got to consider here is what effect an adjudication in insolvency has upon Section 4, Limitation Act. It is argued by the respondent here that it has no effect at all, and that the appellants claim was barred by limitation on 20th October, and she did not avail herself of the time given her for enforcing her claim against the insolvent on 22nd October. On behalf of the appellant it is argued that when the adjudication took place on 22nd October, no further steps could reasonably be taken by the appellant and that her claim was one to be dealt with in the insolvency. What has got to be considered is the meaning of Section 46(3), Presidency Towns Insolvency Act. That section states that all debts to which the debtor is subject when he is adjudged an insolvent shall be deemed to be debts provable in insolvency. It is argued on behalf of the appellant that on 22nd October this was a debt to which the debtor was subject and that, being so, it was provable in insolvency. It seems to me that at any rate throughout 22nd October this was a debt to which the debtor was subject and the question as to whether or not it was provable cannot depend upon the action taken thereafter by the creditor. It is argued by the respondent that it was a conditional debt only, conditional on the appellant filing a suit against the debtor. In my view on that date the appellant had an enforceable claim against the debtor and the debtor had a debt which could bo enforced against him. We have now got to consider whether it was necessary, the adjudication having supervened, for the creditor to file a suit. After the adjudication of a debtor all his property by reason of Section 17, Presidency Towns Insolvency Act, vests in the Official Assignee and no one can bring any suit to enforce any right against the property without the leave of the Court. It is argued here that, notwithstanding this vesting of the insolvents property in the Official Assignee, the appellant should have come t