Mohamed V. Annamalai Chettiar

Present : Garvin S.P.J. and Maartensz A.J.

MOHAMED v. ANNAMALAI CHETTIAR et al.

D. C. Colombo, 3,795.

Insolvency-Certificate of conformity refused-Appeal to Privy Council- Application for protection pending appeal-Powers of Supreme Court. The Supreme Court has inherent power to grant protection from arrest to an insolvent, while an appeal by him to the Privy Council against an order of the Supreme Court refusing him a certificate of conformity is pending.

THIS was an application for protection from arrest pending an appeal to the Privy Council.

The petitioner was adjudged insolvent by the District Court of Colombo on November 23, 1927, and on December 18, 1930, the District Judge granted the petitioner a certificate of conformity of the second class.

On an appeal by the opposing creditors, the respondents, the Supreme Court reversed the order of the District Court and refused the petitioner a certificate of conformity. The petitioner thereupon applied to the Privy Council for special leave to appeal, which was granted on November 19, 1931. Since then, the petitioner applied for and obtained leave to appeal to the Privy Council in forma pauperis.

H. V. Perera (with him Nadarajah), for petitioner.-Leave to appeal in forma pauperis has been obtained. Stay of execution until appeal is heard is always allowed under the inherent powers of the Court. See (1905) 33 I. L. R. Cal. at 932-934. Whether or not a stay of execution has been obtained, the Court can order a stay of execution.

Once a Court is given jurisdiction, it must be deemed to have jurisdiction over all procedural matters incidental to such jurisdiction. In Nityamoni Dasi v. Madhu Sudan Sen [1 (1911) 1. L. 11. 38 Cal. 335.]the Privy Council held that the High Court had power to stay execution notwithstanding that the appeal had been admitted by special leave of the Privy Council.

The matter is still pending, and is not finally determined. The Court referred to in section 152 of the Insolvency Ordinance, No. 7 of 1853, is the District Court, not the Supreme Court. The Appellate Court must be deemed to have, for this purpose, at least the power which by statutory provision is given to the District Court.

N. E. Weerasooria, for respondent.-The Court of Appeal has no original jurisdiction in insolvency proceedings.

[GARVIN S P .J.-Even an Appellate Court must give directions incidental to carrying out its own decrees.]

The Appellate Court is not here asked to vary or set aside an order made by an original Court. This is not a matter which arises in regard to an execution of a decree. See Mohes Chandra Dhal v. Satrughan Dhal [1 (1899) 27 I. L. R. Cat at p. 3.] where the High Court held that it had no jurisdiction to stay execution where leave to appeal was granted by the Privy Council.

Unless the Appellate Court is vested with jurisdiction, whatever injustice may be done, the Appellate Court has not the power to grant relief. The authorities are clear that insolvency proceedings are distinct from the remedies contemplated by the Code with reference to a stay of execution. In the absence of any provision, statutory or otherwise, or any decided cases in support of a grant of this application, the Appellate Court should not exercise its inherent power to grant relief.

H. V. Perera, in reply.-This Court made the order refusing a certificate. It is quite open for this Court to suspend the operation of this order until the matter is finally decided by the higher Court.

December 16,1932. GARVIN S.P.J.- .

This is an application for an order granting the petitioner protection from arrest pending the decision of an appeal to His Majesty in Council. The petitioner was adjudicated insolvent by the District Court of Colombo on November 23, 1927, and his estate was laid under sequestration. The proceedings thereafter followed the usual course and on December 18, 1930, the District Judge granted

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