1929. Present : Fisher C.J. and Drieberg J.

DEEN v. ALAGAPPA CHETTY.

104-D. C. Colombo, 3,798.

Insolvency-Opposition to certificate-Failure to give notice-Adjournment of meeting-Ordinance No. 7 of 1853, s. 124.

In insolvency proceedings a District Court has power to adjourn a sitting held for the purpose of granting a certificate, in order to enable a creditor to be heard, who desired to oppose the certificate but had failed to give the statutory notice.

APPEAL from an order of the District Judge of Colombo.

The appellant having been adjudged insolvent, a certificate meeting was fixed, when the respondent appeared on the appointed day to oppose the granting of the certificate. The appellant objected to the respondent being heard on the ground that the latter had failed to conform to the requirement of the Ordinance with regard to the notice of opposition. The learned District Judge adjourned the certificate meeting to allow the opposing creditor or any other creditor to give notice of opposition.

Weerasooria, for insolvent, appellant.-Section 124 of the 1929. Insolvency Ordinance (No. 7 of 1853) requires that a creditor who desires to oppose the certificate must give three clear days' notice to the Secretary of the Court. Notice handed over to a clerk  is not due notice, and even the clerk says he saw the notice among his papers for the first time only on the day of the certificate meeting. The District Judge has not held whether the notice was given on the day it is alleged to have been given or not. He has no power to adjourn the certificate meeting to cure the non-compliance of the provisions of the section. The adjourned date must be taken, to refer back to the original date fixed for such meeting. Counsel cited Silva v. Siddambaram Chetty [1 4 C. W. R. 217] .

Rajapakse, for opposing creditor-respondent.-The District Judge has power under section 124, ex mero motu, to ask for assistance from a creditor with regard to the consideration of objections to the grant of a certificate, whether such creditor has given notice or not. Here the Judge stopped the evidence and adjourned the meeting. In interpreting section 124 grounds of public policy must be remembered, and the insolvent's conformity to the provisions of the Ordinance. An opposing creditor to some extent represents the public. The notice has to be given to the Secretary, not do the insolvent. The Judge has discretion to adjourn the sitting for the purpose of giving even a creditor, who has not given due notice, an opportunity of giving the required notice. (Ex parte Woods [ 2 20 L. J. Chanc. 619.]; Archbold (1856 ed.), pp. 402-403.) The passage in 4 C. W. R. 217 is obiter dictum.

August 22, 1929. FISHER C.J.-

This appeal arises under the following circumstances: The appellant having been adjudged insolvent, the certificate meeting under section 124 of the Insolvency Ordinance, No. 7 of 1853, was appointed to be held on March 26, 1929. The respondent, who wished to oppose the granting of the certificate, took certain steps to comply with the provision of the section which requires an opposing creditor to give " to the Secretary of the Court three clear days' notice in writing of his intention to oppose," and appeared on the appointed day to oppose the granting of the certificate. The appellant objected to his being heard on the ground that the requirement of the section with regard to notice had not been complied with. The learned Judge, without specifically deciding the question whether due notice had been given or not, and after having heard some evidence, made order as follows: " In view of the facts I think that the fairest order I can make is to adjourn the certificate meeting for June 11. The opposing creditor who has given notice, or any other creditor, will be allowed to give notice

of opposition in the usual way. I do not think it fair to the Court that I should not have