Present: Garvin and Lyall Grant JJ.

MARIKAR v. SUPPIAH PULLE.

180-D. C. (Inty.) Colombo, 3,899.

    Insolvency-Judgment-debtor on bail-Adjudication in Insolvency--Freedom from arrest-Ordinance No. 7 of 1853, s. 36.

When a judgment-debtor, who is on bail pending inquiry into his petition for discharge under section 306 of the Civil Procedure Code was adjudicated an insolvent,-

Held, that he was not in custody within the meaning of section 36 of the Insolvency Ordinance and that he was entitled to the privilege of freedom from arrest until his examination is finished.

In re Insolvency of Punchihewage Don Juanis1 followed.

APPEAL from an order of the District Judge of Colombo

Tisseveresinghe (with Marikar), for appellant.

Peri Sunderam (with G. M. de Silva), for respondent.

December 20, 1928. GARVIN J.-

The facts material to this appeal are these:-In execution of a judgment obtained by the respondent in case No. 24,250 of the District Court of Colombo the appellant was arrested. He was produced in Court on March 6, 1928, and committed to; prison. On the following day he filed papers under section 306 and moved that he be released from arrest on the ground that he/was not possessed of property which could be sold in execution of the decree. The Court fixed the inquiry into the application for May 28, and in the meantime allowed the accused to stand out on bail in Rs. 750. The inquiry was postponed for July 9, 1926. In the meantime, by its order of July 5, 1928, the District Court in its Insolvency Jurisdiction adjudicated the appellant an insolvent and appointed a date for the insolvent to surrender and conform. On July 5 the appellant duly surrendered himself and consented to being adjudicated. On the 13th of that month the respondent to this appeal, who is the judgment-creditor in case No. 24,250, moved "that the insolvent's protection be withdrawn as the same has been allowed ex parte without notice to him." This matter came up before the learned District Judge, who made order as follows :-" In the

circumstances the only order I can make in this case is to withdraw the protection I have granted to the insolvent." The present appeal is from this order.

Section 36 of the Insolvent Estates Ordinance, No. 7 of 1853, enacts as follows :-" If the insolvent be not in prison or custody at the date of the adjudication, he shall be free from arrest or imprisonment by any creditor in coming to surrender, and after such surrender during the time by this Ordinance limited for such surrender, and for such further time as shall be allowed him for finishing his examination, and for such time after finishing his examination until his certificate be allowed, as the Court shall from time to time by endorsement upon summons of such insolvent, or by writing under the hand of the Judge of such Court, think fit to appoint." It is contended for the appellant that at the date of adjudication he was not " in prison or custody," and that if that contention is admitted the section confers a protection upon him, which it was not competent for the Court to withdraw. In short, that if at the date of the adjudication the insolvent be not in prison or custody he receives protection from arrest at least up to the time of finishing his examination, from the Act itself, which the Court has discretion neither to grant nor withhold or withdraw. Both these points appear to be concluded by the case of ex parte Leigh.1[1(1823) 1 Glyn and Jameson 264.] As to the first of these two questions, it was held that the custody of bail on arrest is not custody within the meaning of the statute, at least so long as the bail permits him to be at large. There can be no question here that at the date of the adjudication the appellant was at large and was free to move about as he wished. That is not custody within the meaning of the Ordinance.

It remains to consider whether the appellant was