Insolvent Estate of H. G. ANDRIS

Re Insolvent Estate of H. G. ANDRIS

D. C, Colombo, 2,001.

Insolvency Ordinance, No, 7 of 1S53, ss. 6, 93, 110-Proof of claim-Bight of insolvent to object to claim and appeal against order allowing it.

The right of an insolvent to object to a claim preferred is dependent upon his showing that he will be materially prejudiced in regard to his allowance or surplus of assets.

AS a creditor of the insolvent, one J. E. Aserappa, sought to prove his claim for a sum of Rs. 21,950.94. The insolvent admitted the claim to the extent of Rs. 3,487.40, and, upon affidavit filed, moved that he be heard before the Court accepted the said claim. The Court disallowed the motion and accepted the claim in toto.

The insolvent appealed.

Morgan de Saram, for appellant.-The insolvent appeals against the order which admitted a creditor's claim without giving an opportunity to the insolvent to be heard. [BROWNE, A.J.-Has the insolvent any right to object to the proof of any claim?] Section 93 of the Ordinance No. 7 of 1853 enables him to do so. He is a necessary party to the insolvency proceedings, notwithstanding the appointment of a provisional assignee (Arch-hold's Bankruptcy, p. 193). He has the right to cross-examine a

creditor. In D. C, Colombo, 1,762, re insolvency of Buchanan & Bois, the practice followed by the District Court was the rule now contended for by the insolvent. Under section 6 of the Ordinance, an order like the one complained of is appealable. Zilva's case (D. C, Colombo, 1817), decided in appeal on 25th October, 1895, shows that a creditor or assignee cannot appeal against an order allowing a claim, for their remedy was under section 110 of the Ordinance. But the insolvent has no remedy under that section, and every claim proved would affect him personally in regard to his allowance or the surplus of assets.

H. J. C. Pereira, for respondent.-The Court below has not pronounced an order or judgment, and therefore no appeal lies. Besides, the admission of proof is an ex parte proceeding, and the insolvent has no right of appeal. He can appear only when an order affects him personally. In all other matters the voice of the assignee is dominant. It, is true that the insolvent has the right of cross-examination, but as the estate has yet to vest in the assignee the insolvent can speak only through the assignee, when appointed, in regard to proof of claims. The proper procedure is to move under section 110 of the Ordinance that the claim be expunged.

Margan de Saram replied.

Cur. adv. vult,

19th October, 1900. Moncreiff, J.-

We have to determine whether the insolvent in this case has any right to ask this Court to expunge a creditor's proof, which was allowed by the District Judge. We find in the District Judge's journal on the 2nd August, 1900, the date of the first meeting of the insolvent's creditors. The following is the entry:-"Case called. Insolvent present. Advocate de Saram for him " Mr. Alexander Silva proves claim of J. E. Aserappa & Co. for " Rs. 21,950.94. Mr. Saram will not accept this, except to the " extent of Rs. 3,487.46. I admit the whole claim."

According to the appellant he was not allowed to contest the claim. He says that he had a right to do so, and asks that the order of the Court below be reversed.

It is said that there was no judgment or order. I cannot agree. The admission of the debt converts it into a judgment debt (Ordinance No. 7 of 1853, section 152), so I apprehend there can be little doubt upon that point.

Then It was urged that the insolvent had no right to intervene in the matter because he had no personal interest in it. But it was decided (Re Petit, Fonblanquc B. C. 6) that a bankrupt under the

English Act of 1849 had a right to cross-examine upon a proof-In Griffith on Bankruptcy (Ed. 1869, p. 720) occurs the following passage: -

" If a proof is disputed, evidence upon it is subject to the same " rules of evidence us would b

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