Shaw & Sons V. Suliman Et Al.,

Present: Lyall Grant and Drieberg JJ.

SHAW & SONS v. SULAIMAN et al.

37-D. C. (Inty.) Colombo, 25,143

    Execution-Property seized by several creditors-Estate declared insolvent -Court orders executor to sell property-Order acquiesced in by creditors-Objection to sale.

Property which formed part of an estate administered by Court in testamentary proceedings, was advertised for sale after it had been seized in execution by several creditors. After notice to all the creditors the Court declaring the estate to be insolvent, stopped the sale and directed the executor to sell the property, and bring the proceeds to the credit of the estate.

Held, that it was not open to a creditor, who had acquiesced in the order to sell, to execute his decree by seizure and sale of the property.

Per DRIEBERG J.-In Ceylon there is no provision by which, on proof that an estate is insolvent, the administration proceedings can be transferred to the Court of Bankruptcy.

APPEAL from an order of the District Judge of Colombo. The facts appear from the judgment of Lyall Grant J.

Croos da Brera, for plaintiffs, appellant.

H. V. Perera (with Ameresekere), for first and second defendants, respondents.

H. H. Bartholomeusz, for third respondent, purchaser.

March 27, 1929. LYALL GRANT J.-

This is an appeal from an order of the District Judge of Colombo directing the release of a seizure effected et the instance of the plaintiffs-appellants. ?

The plaintiffs, an English company, sued the defendants, the executors of one Ilema Lebbe Naina Marikar Hadjiar of Colombo, on certain bills and obtained judgment against the estate on July 8, 1928, for Rs. 24,000.-

A number of other creditors had also obtained judgment against the estate, and in two cases decree was entered and writs issued against the property of the deceased.

The premises now in question were seized at the instance of a third creditor and were advertised for sale on July 28,1928. Before this date five other creditors who had filed actions petitioned the District Court to stay the sale. It appeared at the inquiry that altogether three creditors had obtained seizure of the premises.

Meanwhile testamentary proceedings had been instituted by the executors, and in this testamentary action the Court on February 29, 1928, declared the estate to be insolvent. Shaw & In these proceedings the plaintiffs took part. All the creditors Sulaiman except the plaintiffs agreed to participate in a judicial settlement. The position then taken up by the plaintiffs was that they were not interested in the matter as they claimed to have been paid in full. They also denied the insolvency of the estate.

It is quite clear that from this date the estate was treated by the Court as an insolvent estate, and on this footing the Court on July 24, 1928, proceeded to inquire into the application for. the stay of sale. The sale was stayed and an order was made empowering the executors to sell the premises at a certain price to a certain purchaser and to deposit the proceeds to the credit of the case.

The negotiations with this purchaser fell through, and on the petition of the executors the Court directed that the premises should be sold by public auction, the mortgagee paid off, and the balance brought into Court for distribution among the unsecured creditors. It further directed that the conditions of sale should be approved by the Court and that the sale should be subject to the Court's confirmation. The premises were sold and the sale confirmed on December 13, 1928.

The appellants object that there were a number of irregularities in this transaction, for instance, that the conditions of sale were not approved by the Court and that the confirmation of the sale fixed a higher price than the amount bid at the auction, the higher amount being agreed to by the purchaser.

Whatever the importance of these irregularities may be, the plaint

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