053-NLR-NLR-V-35-RAMANATHAN-CHETTIAR-v.-RATNASINGHAM.pdf
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DALTON S.P.J—Ramanathan Chettiar v. Ratnasingham.
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1933Present: Dalton S.P .J. and Drieberg J.
RAMANATHAN CHETTIAR v. RATNASINGHAM.
Ill—D. C. Jaffna, 5,870.
Administration—Seizure of money in testamentary suit—Application to draw
out the money—Insolvency of the estate—Concurrence—Civil Procedure
Code, s. 352.
The appellant seized certain moneys lying in Court to the credit of atestamentary case in execution of a decree against the official adminis- •trator of the estate of the deceased intestate, and applied to have themoney paid out to him.
Held, that the application cannot be refused on the ground that theestate is insolvent; it must be allowed subject to the right of any otherparties who are entitled; to concurrence.
There is no provision in the law as it exists in Ceylon for winding upthe estate of a deceased person in insolvency.
^ PPEAL from an order of the District Judge of Jaffna.
H. V. Perera (with him Nadesan), for creditor, appellant.
No appearance for official administrator, respondent.
May 18,1933. Dalton S.P.J.—
The appellant has seized certain moneys lying in Court to the creditof the testamentary case, in execution of a decree obtained by himagainst the respondent, official administrator of the estate of the deceasedperson. He has applied to the Court to have the sum seized paid outto him, but his application has been refused. The ground for refusalis that the estate is insolvent, that is there are not sufficient-funds to payall the debts in full.
No insolvency proceedings were taken against the deceased personin his lifetime, and apparently there is no provision in the law as it existsin Ceylon for winding up the estate of a deceased person in insolvency.A provision for the administration in insolvency of the estate of a persondying insolvent, similar to section 125 of the English Bankruptcy Act,1883, would appear to be long overdue. There would, as the law standsat present, appear to be nothing to prevent an executor of an hopelessly
2S6 DALTON SJ?J.—Ramanathan Chettiar v. Ratnasingham.
insolvent estate preferring one creditor to another of the same class.The estate would appear to be in the same position as a man who is unableto pay bis debts, but has not obtained the protection of the insolvencylaw. with this addition that the estate cannot obtain that protection,nor the creditors its assistance.
The provisions of section 199 of the Civil Procedure Code give noassistance in such a case as this. It was held as long ago as 1906 thatthe administration there referred to is not the ordinary testamentaryprocedure provided by the Code (Hay v. Nunn'). One can only stressthis again as one of the matters on which the present Insolvency Law isdeficient and out of date.
The District Judge had no ground for refusing the application, whichmust be allowed, subject of course to the rights of any other partieswho are entitled to concurrence under the provisions of section 352of the Civil Procedure Code.
The appeal is allowed with costs in both Courts.
Drieberg J.—I agree.
Appeal alloioed. 1
1 9 N. L. Jl. 161.