1934 Present; Drieberg, Akbar, and Poyser J J.

KANAGARATNE v. YAPA

84-C. R. Galle, 13,151

    Insolvency-Right of assignee to sue-No leave of Court necessary-Ordinance No. 7 of 1853, s. 82.

The right of an assignee in insolvency to sue does not depend on leave of Court previously obtained for the purpose.

CASE referred by Maartensz J. to a Bench of three Judges. The facts are stated in the reference as follows: -

This was an action by the assignee of the insolvent estate of S. D. Siyadoris and K. D. Sedris to recover from the defendants a sum of Rs. 134.07 with further interest on a sum of Rs. 120 at 18 per cent, per annum.

The defendant did not deny the claim in his answer, but took the objection that the plaintiff had not obtained the leave of Court to bring the action as required by section 82 of Ordinance. No. 7 of 1853. The action was tried on the following issues : -

1. Did the assignee obtain permission of the District Court to bring this case?

2. If not, can the action be maintained ?

3. Can the action be maintained without a special averment that leave was obtained?

The learned Commissioner answered all the issues in the