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FREUDENBERG v. WEERAPASS et al.
NLR30V239
Present: Schneider and
Garvin JJ.
FREUDENBERG v. WEERAPASS et al.,
25-DJC (Inty.) Colombo, 3592
Insolvency Proof of judgment-debt-Counterclaim bit insolvent-Set off-Ordinance No.
7 of 2553, ss: 99 and'109.
Proof of a judgement doubt in insolvency proceedings does not deprive the
judgment-creditor of the right to sot off, as against the debt, a sum decreed to
to insolvent by way of counterclaim in l ho action.
APPEAL
from an order of the District Judge of Colombo. In action No. 16,521 of
the District Court of Colombo, one Weerapass sued the appellant and another
person to recover. damages for wrongful dismissal. The appellant counterclaimed
a sum of money due on certain promissory notes. Weerapass' claim was dismissed
and judgment was entered for the appellant for a sum of Rs. 4,281 o 66.
Weerapass was adjudicated an insolvent in the present action and the appellant
proved his claim in the insolvency proceedings. Eventually, as a result of an
appeal and a second trial, Weerapass got judgment against the appellant for a
sum of Rs. 6,280 as damages. That sum and the sum payable to the appellant were
set off against each other and satisfaction of the decree entered accordingly.
The second respondent, a creditor of Weerapass, moved in the insolvency
proceedings for an order directing the appellant's bring into Court the whole of
the said sum of Rs. 6,280. The learned District Judge ordered the appellant to
bring the said sum into Court and in default allowed writ to issue against him.
H. V. Perera, for the appellant.
March 28, 1928. SCHNEIDER J.-
There is no appearance for either one of the respondents to this appeal.
Counsel, who appears for the appellant, Mr. Freudenberg, states the facts to be
the following :-Weerapass, the insolvent in action No. 16,521 of the District
Court of Colombo, sued the appellant and another person to recover damages for
his dismissal in breach of an agreement for his service. The appellant
counterclaimed a sum of money as due to him upon certain promissory notes. Weerapass' claim was dismissed and judgment was entered for t fie appellant upon his
counterclaim for the sum of Rs. 4,281 66. Weerapass was thereafter adjudicated
an insolvent in this action. Eventually, as the result of an appeal and a second
trial, judgment was entered declaring Weerapass entitled to a sum of Rs. 6,280
as
damages recoverable from the appellant and the other defendant. The
appellant undertook the liability to satisfy the decree for the sum of Rs.
6,280. That sum and the sum payable to the appellant were set off one against
the other, and the Proctor for the appellant v. Weerapass and the Proctor for
the assignee in that action moved that satisfaction of the sum decreed to be
paid by and to the appellant be entered of record, the appellant having paid to
the assignee's Proctor the . balance due. The Court thereupon entered order
accordingly. Before that order was made the appellant had proved in this action
his claim for the debt due to him upon the decree in action No. 16,521. The
assignee's Proctor brought to the credit of this action the sum received by him
from the appellant. The second respondent, who is also a proved creditor, moved
in this action for an order directing the appellant to bring into this action
the whole of the said sum of Rs. 6,280. This the appellant resisted. The Judge
of the lower Court, after hearing argument, made order that the appellant should
bring into Court the whole of the said sum and that on his default the assignee
was to issue writ for its recovery. In the course of his order he held that he
was entitled to set aside the order made in action No. 16,521 of set off and
satisfaction of decree ; that the appellant by proving his claim in these
proceedings in insolvency had extinguished his rights under the decree and that
the appellant was not entitled to " take payment in full."
I am unable t
