1933 Present: Dalton and Poyser JJ.

DE ZOYSA v. BAUR & CO.

136.-D. C. Colombo, 4,644.

Insolvency-Petition for sequestration of estate-Petition and affidavit of petitioning creditor-Proof of petitioning creditor's debt.

Where, in a petition for the adjudication of a person as insolvent, the only material before the Court was the petition and affidavit of the petitioning creditor,-

Held, that there was insufficient proof of the petitioning creditor's debt.

APPEAL from an order of the District Judge of Colombo.

Hayley, K.C. (with him H. V. Perera, Nadarajah, and Aluwihare), for appellant.

No appearance for respondent.

Cur. adv. vult.

November 30, 1933. POYSER J.-

This is an appeal against two orders of the District Judge of Colombo adjudging the appellant an insolvent. The proceedings in the District Court were as follows: -There were two petitions to have the estate of the appellant adjudged insolvent and placed under sequestration, viz., the petition of W. C. Brodie which set out that the appellant was indebted to him in a sum of Rs. 28,124.51 due under a decree entered in case No. 49,373 of the District Court of Colombo and had failed to pay such amount within thirty days after a notice under section 12 of the Insolvency Ordinance had been served on him. This petition was dated January 14, 1933.

The second petition was that of Alfred Baur. It was dated March 7, 1933, and was in respect of a sum of Rs. 1,261.15 due to the petitioner under a decree of the same Court.

Both the petitions were in the statutory form and no question arises in regard to them.

On March 18, 1933, Messrs. Julius & Creasy, Proctors for both creditors, filed proxies and the petitions for the sequestration of the appellant's estate and affidavits in support and moved that the appellant be adjudged an insolvent.

The learned Judge then ordered that the appellant be and is hereby adjudged an insolvent and directed notice to be issued on the insolvent to show cause against the adjudication on April 4, 1933.

On that date the appellant moved for one month's time to show cause against such adjudication and was allowed time till April 7. On the latter date the petitioning creditor, W. C. Brodie, withdrew his application and the adjudication on his petition was annulled.

The application of Baur & Company by consent stood over till May 16.

On May 15 the appellant filed a motion in the following terms:-"As the application by Messrs. Brodie & Company for Rs. 25,000 to adjudicate G. R. de Zoysa insolvent having been withdrawn and as the said G. R. de Zoysa is making arrangements with Mr. Hale of Messrs. Julius & Creasy to settle Messrs. Baur & Company's application for Rs. 700, I move for a further two weeks' time to show cause in this matter ".

On May 16 the case was called but the appellant was absent. The motion for a further two weeks' time to show cause was then considered, the petitioning creditor objected to further time being granted and the learned Judge upheld the objection. The journal entry is as follows: -

" No cause being shown by insolvent he is adjudicated insolvent in terms of section 12 of the Insolvency Ordinance ".

On May 19 the appellant's proctor filed his proxy and moved that the order of May 16 be vacated and proceedings were stayed until May 30. On that date appellant's proctor moved that the order of May 16 should be vacated on the ground that the order of May 16 was made on insufficient material and also that his client was unable to be present in Court on that date.

The appellant gave evidence and stated that his non-appearance on May 16 was due to the fact that he thought that he would be given time as he did not anticipate any objection from the proctors for the petitioner. He also stated that he disputed the adjudication.

The learned Judge in his order dated June 6 found that the appellant had adduced no satisfactory explanation for the default