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MOHAMED v. RAMASAMY CHETTIAR et al.
NLR34V130
1932 Present :
Macdonell C. J. and Dalton J.
MOHAMED v. RAMASAMY CHETTIAR et al
17-D. C. (Inty.) Colombo, 3,795.
Insolvency-Supreme Court
refuses certificate-Appeal to Privy Council- Power of District Court to grant
protection-Ordinance No. 7 of 1353, ss. 32, 132, 133 and 152.
A District Court has no power to grant protection to an insolvent to whom the
Supreme Court has refused a certificate, while an application by him to the
Privy Council for leave to appeal is pending.
APPEAL
from an order of the District Judge of
Colombo.
N. E. Weerasooria, for creditor, appellant.-A District Court has no jurisdiction
to extend protection after a certificate has been refused by the Supreme Court.
The protection granted is a temporary protection till the question of the grant
of a certificate is considered. Once it is refused no question of further
protection can arise. The order finally made is an order of the Supreme Court
and the Court which has power then to grant protection is the Supreme Court and
not the District Court (Hamil v. Lilly [1 19 Q. B.. D. 83. '.] ). The material
on which the application was granted is entirely insufficient.
N. Nadarajah, for insolvent, respondent.-Either the District Judge is completely
junctus officio as soon as he refuses a certificate or he has some further power
to grant protection pending an appeal to the Supreme Court. He can according to
the Ordinance grant protection till the certificate is allowed. .An insolvent
has a right to appeal to the Supreme Court. He has also a right to appeal to the
Privy Council. The District Judge can grant protection pending the appeal (Ex
pttrte Nicholson [2 Dr Gex, Fisher & Jones 270.] ). The District Judge has the
right to grant protection even after he refuses a certificate till the Supreme
Court grants or refuses a certificate. Even where the Supreme Court refuses a
certificate the District Judge can grant it on the ground that the presence of
the insolvent is necessary for the assistance of the assignee. If a person has a
right to appeal to
the Privy Council and the Judge
is satisfied that his freedom from arrest is necessary for him to prosecute his
appeal, he has a right to grant protection. The District Judge is satisfied that
the insolvent is making bona fide endeavours to prosecute his appeal before the
Privy Council.
August 4, 1932. MACDONELL CJ.-
This appeal involves construing the Insolvency Ordinance, No. 7 of 1853.
particularly sections.36, 132, and 152. The facts were as follows: - The
respondent was made insolvent on November 21, 1927, and was eventually granted a
certificate of conformity of the second class by the District Court of Colombo,
on' December 18, 1930. The creditors appealed to the Supreme Court against this
grant of a certificate and their appeal was allowed and a certificate refused,
by order of June 10, 1931. The insolvent then applied to the Supreme Court for
conditional leave to appeal to the Privy Council against the order of the
Supreme Court of June 10, 1931, refusing him a certificate, but the Supreme
Court refused to give him this leave by an order of August 6, 1931. The
insolvent then applied to the Privy Council itself for leave to appeal to it and
on September 2, 1931, applied to the District Court for protection from arrest
under section 36 of the Ordinance till the determination of this application to
the Privy Council. The District Court granted him this protection by an order of
October 5, 1931, the protection to be for three months, conditioned on his
entering into a bond for Rs.1,000 with one surety. It is from this order of
October 5, 1931, granting the insolvent protection that the present appeal dated
October 10, 1931, is brought. To continue the statement of facts. On November 9,
1931, the insolvent obtained from the Privy Council leave to appeal to it
conditional on his depositing £400 as security for the costs o
