Re Perera, M.A.

Re M. A. PERERA. Insolvent.

D. C, Colombo, 1,979 (Insolvency).

Davies & Co., Petitioners.

M. A. Perera, Respondent.

Insolvency Ordinance, 1853, ss. 124, 129, 133, 134-Application for recall of certificate of conformity-Time within which such application should be made.

Section 129 of the Ordinance No, 7 of 1853 refers solely to the allowance of a certificate by the District Court which had not been appealed against, and was intended to give a summary remedy in cases where no appeal has been taken under section 13?.

Section 129 does not apply at all to orders made by the Supreme Court on appeal from the District Court.

Where a District Court refused to grant a certificate of conformity to an insolvent, and the Supreme Court by its judgment of 24th October, 1900, directed that a certificate of the third class be given to him, but suspended its issue for a year from 24th October, 1900,

Held, that any application to recall such certificate should be made under section 133, and that any order made there under by the District Court would be appealable to the Supreme Court.

Held also, that section 129 was intended to give to the Supreme Court a special jurisdiction where there has been no appeal from the allowance of the certificate by the District Judge.

Held further, that the petitioner was out of time in applying for a recall of the certificate in October, 1901.

ON the motion of Van Langenberg for Messrs. W. H. Davies & Co., that the Supreme Court do issue an order on the insolvent, M. A. Perera, to show cause why its order dated the 24th October, 1900, should not be revised, and the order of the District Judge dated the 2nd August, 1899, be restored,-

Browne, A.J., ordered as follows on the 24th October, 1901: -

" In this matter the District Court of Colombo on the 2nd August, 1900, refused to grant to the insolvent any certificate of conformity whatever. The insolvent appealed, and the Supreme Court on the 24th October, 1900, directed that the insolvent be given a certificate of the third class, but suspended the issue of it for a year from that date.

" The insolvent had in his balance sheet scheduled the petitioners to be creditors for Rs. 45,000. They however held security for their claim, and deferred proving their claim, till they should realize their security and then prove for the balance.

" The security was not sold till the 15th September, 1900, and when petitioners moved to prove for the unsecured balance of Rs. 36,247, this motion was opposed, and proof was not accorded till the 28th February, 1901.

It is clear from the above that, at the date of the allowance by this Court of certificate of conformity to the insolvent, the parties had no. status in Court which would entitle them to be heard on the question of whether it should he granted or refused. Their application to have it re-considered might certainly have been made at any time since February last, but their counsel has informed us that, though their proof was allowed, there is now pending a motion to expunge it.

They desire now a rule on the insolvent to show cause why the order of the Court granting certificate should not be revised on the ground that, though of the original debt of Rs. 45,000 admitted by the insolvent there remained due to the petitioners Rs. 86.247, for which they held no security, he. in appealing for grant of certificate, stated that he had through his friends settled with all his creditors except as to some Rs. 3.000. which the funds in the hands of the assignee and the unsold property would be more than enough to pay in full, and that his creditors were thus satisfied and made no opposition to the grant of the certificate.

" The delay in now moving has not been so excessive that we should refuse it for the reasons given in 162. D. C. Randy. (Ram. 1875. p 95), and the petitioners may, in my opinion, be allowed a. rule, but on giving security for costs, viz.. Rs. 100."

Upon not

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