058-NLR-NLR-V-01-In-the-Matter-of-the-Insolvency-of-M.-L.-MARIKAR-ABDUL-AZIS.pdf
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1896.Sept. 13.
In the Matter of the Insolvency of M. L. MARIKARABDUL AZIS.
D. C., Galle, 258.
Practice—Appeal—Insolvency proceedings—Security for appeal costs—Ordi-nance No. 7 of 1853, s. 6—Rules and Orders of 1833—Civil ProcedureCode, s. 750.
The provisions of the Civil Procedure Code, 1889, relative to thegiving of security for the respondent’s costs of appeal, do not applyto appeals from orders in insolvency cases.
Re insolvency of Philippo (D. Colombo, 1,097), 9 S. C. C. 120, over-ruled.
r | ''HIS was an appeal by the insolvent against the refusal of the-1- District Judge to grant him a certificate of conformity underthe Ordinance No. 7 of 1853. No security for the respondent’scosts of the appeal was given.
The case came on for argument before Bonser, O.J., andBrowne, A.J., on June 21,1895, and De Saram appeared for theinsolvent and Domhorst for the respondent.
Dornhorst took the preliminary objection that no security forcosts in appeal was given as required by section 756 of the CivilProcedure Code, and relied on the case reported in 9 S. C. C. 120(In the matter of the insolvency of Philippo).
De Saram contended that the case relied on was not in accor-dance with section 6 of the Ordinance No. 7 of 1853, and ought tobe over-riled.
The case was set down for argument before the Full Court(Bonser, C.J., Withers, J., and Browne, A.J.) on the point asto the necessity for giving security for costB.
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De Saram (Jayewardene with him) on the preliminary 1896.objection contended that the provisions of section 756 of the Code Bonus, CJ.dealt only with appeals from civil cases, and was never intendedto touch insolvency proceedings, which had a special procedure ofits own. No rule or order was ever made by the Supreme Courtunder section 4 of the Insolvency Ordinance, so that we must beguided by the regulations which existed at the time the Ordinancecame into force. There were none; but orders in insolvencyproceedings were treated as interlocutory orders, and required nosecurity to be given. Clarence, A.C.J., in the case referred to,was wrong in dealing with the old Rules and Orders, 1833, for theydid not touch insolvency appeals. If appeals from insolvencyorders were dealt with under the Code, and required security, thedifficulty would be to fix the class under which such securityshould be given.
Domhorst, contra. The Civil Procedure Code dealt withappeals from any judgment, decree, or order of any original court,and it is submitted that orders in insolvency proceedings comewithin this section 754 of the Code. Original Court is defined insection 5 of the Code so as to include District Courts and Courts ofRequests, and under section 756 security muBt be given for suchappeals.
De Saram, in reply.
13th September, 1895. Bonser, C.J.—
This is an appeal in an interlocutory matter, and the prelimi-nary objection is taken that the appellant has not given securityfor costs in appeal, and the question fur our decision is—whetherthe objection is a good one or not. The practice before theintroduction of the Civil Procedure Code appears to have beenuniform, that no security was required in appeals under theInsolvency Ordinance. The right of appeal was given by section6 of Ordinance 7 of 1853, and that section enacted that “ every“such appeal shall be brought on and prosecuted in such“ manner, and shall be subject to such regulations as now“ exist, or shall hereafter be made by any rule or order of the“ Supreme Court.” Now, it is admitted that no rule or order ofthe Supreme Court waB made after the date of the InsolvencyOrdinance, either dealing with insolvency matters or any otherappeals. At the date of the enactment of Ordinance 7 of 1853there were in existence Rules and Orders which had been madein 1833 dealing with appeals generally from District Courts inrespect of civil matters. The Rules and Orders therefore governedappeals in insolvency matters in the absence of any express rules
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IMS. made by (he Supreme Court. In 1889 the Civil Procedure Code. o t was paeeed. The question arises whether that Code expressly orimpliedly repealed the then existing procedure in respect ofappeals in insolvency matters.
There are clauses in the Civil Procedure Code which seem, atfirst sight, to show such an intention. Section 754 provides that“ every appeal to the Supreme Court from any judgment,
u decree, or order of any Original Court, shall be made in
“ the manner herein provided.” But if we look to the requirementsof the Code as to the contents of a petition of appeal, we see thatone of the requirements is that the petition shall state the namesof the parties to the action. An insolvency proceeding is notgenerally described as an action.
It is more properly described as a matter, and from that Idraw the conclusion that the provision in the Code as to appealswas only intended to refer to appeals in actions properly sodesignated. I am confirmed in this view by consideration of thegeneral scope and frame of the Civil Procedure Code. It dealswith appeals in civil actions ; it makes no express provisions asto insolvency appeals, and, indeed, is altogether silent with respectto insolvency proceedings.
I am of opinion that it was never intended that insolvencyproceedings should be touched by the Code, but that it wasintended that the provisions of Ordinance 7 of 1853 shouldcontinue to regulate all proceedings under that Ordinance.
There is, however, a decision of twd Judges to the contrary (reinsolvency of Philippo, reported in 9 S. C. C.p. 120), where it washeld that the 58th chapter of the Civil Procedure Code deals withappeals generally, and that section 756 requiring security to begiven applied to insolvency appeals. But the Court there doesnot appear to have dealt with section 6 of Ordinance No. 7 of 1853,which requires that all appeals under it should be prosecutedsubject to the then existing regulations in default of any newregulations made by the Supreme Court thereafter. I confess that Icannot follow the reasoning of that judgment. Clarence, J., saidthere were no orders of the Supreme Court, but instead of inferringas a necessary consequence that, as there were no such orders, wemust revert to the procedure under the regulations of 1833 andOrdinance 7 of 1853, he draws the conclusion that the Code mustgovern. I say that I cannot follow this reasoning, or agree withthe decision. In my opinion the intention of the Code was toleave untouched the procedure as to appeals in insolvency cases.The objection to the reception of this appeal cannot be sustained,and the appeal must be heard.
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With bus, J.—
I agree.
1 venture to dissent from the learned Judges whose judgmentis under review, for the simple reason that, in my opinion, theCivil Procedure Code has nothing whatever to do with insolvencymatters.
The preamble of this Code recites that it is expedient toconsolidate and amend the laws relating to the procedure of civilcourts in the Colony. In section 5 of this Code “ civil court ” isdefined to be “ a court in which civil actions may be brought."Under chapter II. of this Code an action may be either regularor summary, the Code itself providing for all cases in which actionsmay be taken by way of summary procedure. “ Insolvency ” isnot mentioned in the Code. “Action” is not an apt term todescribe insolvency proceedings, the procedure in regard to whichis regulated by Ordinance No. 7 of 1853.
The 6th section of that Ordinance enacts that “ all decisions and“ orders of the District Courts made under the authority of this“ Ordinance shall be subject to an appeal to the Supreme Court,“ and every such appeal shall be brought on and prosecuted in“ such manner, and shall be subject to such regulations as now“ exist, or shall be hereafter made by any rule or order of the“ Supreme Court ”
No rdles especially adapted to appeals from orders in insol-vency matters having been framed by the Supreme Court, we arecarried back to the practice of appeals from judgments in civilcourts obtaining at the date of that enactment. And here we aremet with a difficulty. In the case of interlocutory orders onlywas no security required. In all other case9 an appellant, if able,was obliged to furnish security for the subject of litigation aswell as security for costs. If unable to furnish the former, hewas allowed to furnish security for costs only, if he had a goodcause of appeal.
However, as a matter of continuous practice from the date ofthe Insolvency Ordinance to the date of the judgment underreview, orders in insolvency proceedings have been treated asinterlocutory orders in civil courts.
They have always come up before a single Judge, withoutsecurity for costs. That long-settled practice, whatever thereason for it, muBt be taken to be the law on the point, unlessexpressly or impliedly repealed. The Civil Procedure Code hasnot, I consider, repealed it.
The reason for the practice may have been that in insolvencyproceedings there is no subject of litigation as in a contested
1890.
WrrHXxa, J.
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1896. action, and as all the property of the insolvent has vested in theBaowNeiAJ assignee, he cannot be expected to furnish security for costs.
Brownk, A.P.J.—I concur.
[On the merits the appeal was heard on the 17th September, 1895,and the case was sent back for further inquiry as to the financialposition of the insolvent.]