In the Matter of the Insolvency of M. L. MARIKAR ABDUL AZIS.

In the Matter of the Insolvency of  M. L. MARIKAR

 ABDUL AZIS.

D. C. Galle, 258.

Practice-Appeal-Insolvency proceedings-Security for appeal costs-Ordi­nance No. 7 of 1853, s. 6-Rules and Orders of 1833-Civil Procedure Code, s. 756.

The provisions of the Civil Procedure Code, 1889, relative to the giving of security for the respondent's costs of appeal, do not apply to appeals from orders in insolvency cases.

Re insolvency of Philippo (.D. C, Colombo, 1,697), 9 S. C. C. 120, over­ruled.

THIS was an appeal by the insolvent against the refusal of the  District Judge to grant him a certificate of conformity under the Ordinance No. 7 of 1853. No security for the respondent's costs of the appeal was given.

The case came on for argument before BONSER, C. J., and BROWNE, A. J., on June 21,1895, and De Saram appeared for the insolvent and Dornhorst for the respondent.

Dornhorst took the preliminary objection that no security for costs in appeal was given as required by section 756 of the Civil Procedure Code, and relied on the case reported in 9 S. C. C. 120 (It the matter of the insolvency of Philippo).

De Saram contended that the case relied on was not in accor­dance with section 6 of the Ordinance No. 7 of 1853, and ought to be over-ruled.

The case was set down for argument before the Full Court (BONSER, C. J., Withers, J., and Browns, A. J.) on the point as to the necessity for giving security for costs.

De Saram (Jayewardene with him) on the preliminary objection contended that the provisions of section 756 of the Code dealt only with appeals from civil cases, and was never intended to touch insolvency proceedings, which had a special procedure of its own. No rule or order was ever made by the Supreme Court under section 4 of the Insolvency Ordinance, so that we must be guided by the regulations which existed at the time the Ordinance came into force. There were none; but orders in insolvency proceedings were treated as interlocutory orders, and required no security to be given. Clarence, A. C. J., in the case referred to, was wrong in dealing with the old Rules and Orders, 1833, for they did not touch insolvency appeals. If appeals from insolvency orders were dealt with under the Code, and required security, the difficulty would be to fix the class under which such security should be given.

Dornhorst, contra. The Civil Procedure Code dealt with appeals from any judgment, decree, or order of any original court, and it is submitted that orders in insolvency proceedings come within this section 754 of the Code. Origina

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