In The Matter Of The Insolvency Of Hadjiar Abdul Gaffoor

 

Present ; Mr. Justice Wendt and Mr. Justice Grenier.

 

In the Matter of the Insolvency of HADJIAR ABDUL GAFFOOR.

 

D. C., Kandy, 1,562:

 

    Insolvency-Person in jail under civil writ-Right to discharge- Discretion of Judge-Grounds of exercise of discretion.
 
    A debtor who is in jail under a. civil writ is not entitled, as of right, to be discharged upon his adjudication as insolvent. It is in the discretion of the Court to release him or not.
 

    APPEAL from an order of the District Judge refusing to release the appellant upon his adjudication as insolvent.

 

Bawa, for the, insolvent, appellant. 

Cur. adv.  vult.

 November 3,  1908.  WENDT J.-

 

The appellant, who had lain twenty-one days in prison upon execution against his person and was yet in custody, petitioned that he should be adjudicated insolvent. His proctor, in presenting his petition, moved that petitioner should be adjudicated, that the Fiscal be ordered to produce his body in order to his surrender and that the petitioner be given the protection of the Court. The printed forms containing these motions end with the printed words " Allowed and ordered accordingly, " with the addition in manuscript: "It is further ordered that the insolvent be released from custody on furnishing certified security for Rs. 10,000." This is followed by the Judge's signature, and then follows a printed motion for the insolvent's release, with the printed order: " There being no objection, it is ordered that the insolvent be forthwith released from custody. " The detaining creditor was not given notice, and so was not in a position to object. The two orders are contradictory, and the later one is unconditional. This is another instance of the careless use of printed forms. The lower half" was intended to be filled up after the insolvent had been produced and had surrendered. The District Judge anticipated his production and his application for release from custody. The insolvent, who has not yet surrendered, appeals to this Court, and wishes to be released forthwith; but this irregularity is due to the anticipatory-order made by the District Court. It not appearing what the security demanded was intended to ensure, we inquired of the District Judge, who replies that he made the order under section 36 of the Insolvency Ordinance, No. 7 of 1853; that the amount of Rs. 10,000 was fixed because that was the amount of the judgment under which the appellant was in custody; and that " the security was intended to ensure the insolvent's surrender in Court up to the 

 

 appointment of an assignee of his estate. " So far as the " surrender " properly so called was concerned,  that is to say, the appearance in Court of the insolvent and his consent to the adjudication, security was unnecessary, because he was in the Fiscal's lawful custody, and his appearance in Court would be ensured by the Court's order for his production. It is after such protection and surrender and after the Court has granted protection from arrest (meaning a fresh arrest on some other writ) that the application for discharge may be made, when the Court is empowered (not required) to order his immediate release, either absolutely or upon such conditions as it shall think fit. Certain cases are specified in which the release is forbidden. It is nowhere enacted that a debtor in custody is upon adjudication entitled to his discharge, as, of course, the Court has a discretion. The detaining creditor being interested should have notice of any application for discharge, and is entitled to be heard (Ex parte Preston 1). Then, how is the Court's discretion to be exercised? Obviously, it must have regard to the purpose for which the law allows the discharge of a debtor, lawfully detained, against the wishes of the detaining creditor. In re Robinson,2 Mr. Commissioner Hobroyd said: " The object

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