1939     Present: Moseley A.C.J. and Nihill J.

CASSIM v. SUPPIAH PULLE.

11- D. C. (Inty.) Colombo, 4,669. 

Insolvency-Application to set aside the transaction of an insolvent-Proceed­ing arising out of but independent of insolvency-Evidence in insolvency proceedings inadmissible-Prescription-Insolvency Ordinance (Cap. 82).

Section 51 of the Insolvency Ordinance applies only to the case of a person who has been adjudged insolvent and is aimed at transactions effected at a time when such person is in fact insolvent.

An application under the section by way of petition is a proceeding arising out of the insolvency proceedings but independent thereof.

In such a proceeding the assignee is not entitled to rely on the evidence given in the insolvency proceedings by the insolvent and the respondent to this application.

Per NIHILL J.-Such a proceeding is an action within the meaning of section 2 of the Courts Ordinance and comes within the ambit of section 10 of the Prescription Ordinance.

Kandapper v. Moses (8 T. C. L. R. 69) and Kandappa v. Ramasamy Chetty (6 C. L. Rec. 37) followed.

THIS was an application by the assignee of an insolvent estate under section 51 of the Insolvency Ordinance. The insolvent was so adjudged on June 19, 1933. The certificate meeting was held on August 31, 1937, when a certificate of the third class was granted but suspended or four years.

On December 9, 1937, the asignee instituted proceedings under section 51 for the sale of certain property for the benefit of the creditors.

H. V. Perera, K.C. (with him S. J. V. Chelvanayagam), for the first respondent, appellant.-The order for sale made under section 51 of Cap. 82 cannot be supported. Under section 51 insolvency at the time of the impugned conveyance has to be proved by the petitioner-Kan­dapper v. Moses [1 (1930) 8 T. C. L. R. 69.].

The present proceedings are quite distinct from the certificate proceedings. The trial Judge, however, has treated them as parts of one and the same action and has improperly let in the evidence which had been taken in the certificate proceedings. In no sense can the appellant who was a purchaser from the insolvent be regarded as a party to the certificate proceedings. See Kandappa v. Ramasamy Chetty [2 (1924) 6 C. L. Rec, 37.].

The assignee's application should be regarded as an independent action. The present claim, therefore, is prescribed-Fernando v. Peiris [3(1931) 33 N. L. R. 1.].

N. E. Weerasooria, K.C. (with him C. Renganathan), for the assignee, respondent.-The Prescription Ordinance would apply only in regard to I actions. It has been held that an insolvency proceedings is not an action -In re Hayne Thornhill [ 4 (1895) 1 N. L. R. 243.]; Dias v. Palaniappa Chettiar [5 (1932) 34 N. L. R. 195.] Fernando v. Peries (supra) was not a proceeding under the Insolvency Ordinance; it I was an independent action to have a deed set aside.  

An application under section 51 of the Insolvency Ordinance is only step and incident in the insolvency proceedings. Any evidenc