Mohamadu Cassim V. Perianan Chetty

Present: Lascelles C.J. and Middleton J.   June.20,1911

In re the Insolvency of MOHAMADU CASSIM.

MOHAMADU CASSIM v. PERIANAN CHETTY.

79-D. C. Kandy, 1,571.

Insolvency-Motion by insolvent to expunge debt after the appointment of assignee-Practice-Power of Judge to inquire into validity of judgment obtained by fraud-Summons-Service of summons on one partner after dissolution of partnership-Judgment obtained without service of summons null and void.

Before the close of the first sitting in insolvency proceedings one P. tendered proof of a debt. The insolvent did not admit the debt, but proof was admitted without further inquiry. Subsequently, after the appointment of assignee, the insolvent moved to have the debt expunged.

Held, the procedure of moving to expunge a debt is not open to the insolvent, but only to the assignee or to two creditors under section 110 of Ordinance No. 7 of 1853. The proper course would have been to have inquired into the bankrupt's objection at the time when it was made, or, at any rate, before the appointment of the assignee.

But a practice has grown up in our Courts under which debts are admitted to proof notwithstanding non-admission, and objection is allowed to be made subsequently by way of motion.

" A bankrupt has a right to petition for expunging of a debt proved by a creditor, provided that the admission of the debt was calculated to affect the surplus or the allowance of the bankrupt."

The power of a Judge to inquire into the validity of a judgment-debt, where there is evidence that the judgment has been obtained by fraud or collusion, or that there has been some miscarriage of justice, is unquestionable.

In an action brought after the dissolution of a co-partnership against the former partner's nomination, service of summons on one of the defendants is not a good service on the others.

A judgment is null and void, and cannot be executed against a person who is not served with summons.

THE facts are set out in the judgment.

Bawa, for the appellant.-The Court ought not to have expunged the debt. The Court will listen to an insolvent only when he contests proof of a debt. Once the Court has admitted the debt, the insolvent cannot thereafter raise the question by moving the Court to expunge the debt. Only the assignee or two creditors can

move the Court to expunge the debt. (Section 110 of Ordinance No. 7 of 1853.) The insolvent has no interest in having the debt expunged. Counsel cited Archbold, p. 194(11th ed.); In re Andris1. If the judgment against the insolvent was bad for any reason, the assignee should bring a separate action to impeach that judgment. The judgment is perfectly valid as it stands.

The District Court of Kandy had no power in the insolvency proceedings to review the validity of the judgment of the District Court of Colombo obtained by the appellant against the insolvent.

The service of summons on the defendants in the Colombo case was good. Section 64 of the Civil Procedure Code enacts that service on one partner is a good service against the other partners. Counsel cited Davis & Son v. Morris,2 Ex parte Young,3

Allan Drieberg, for the respondent.-The insolvent has a right to petition the Court to expunge a debt. See In re Andris.1 The practice of our Courts is to allow proof of debts without inquiry in the first instance, though the debt be not admitted by the insolvent.

The District Court of Kandy has the power to review the judgment obtained against the insolvent in the Colombo case. It is open to the District Judge in these insolvency proceedings to inquire if summons were served on the insolvent. Counsel cited Wigram v. Cox, Sons, Buckley & Co.,4 In re Flatau,5 Ex parte Lennox6 Boaler v. Power.7

The service of summons on the insolvent in the Colombo case was bad, because summons was not served on him personally, and as at the date of the action the partnership was dissolved. It is only in the

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