[1937] EACA 17

[1937] EACA 17

The Court of Appeal held that under Order XIX, Rule 37, the power to commit a judgment debtor for non-payment of a decretal amount is limited to circumstances where there is an order to pay a specific sum that the debtor is shown to be capable of paying, and there is a refusal or neglect to pay that sum. The rule relates to the whole amount of the decree unless an instalment order is made. In the present case, there was no order for payment by instalments, and no sufficient evidence that the debtor had the means to pay the whole decretal amount. The English authority of In re Fryer, decided under the Debtors Act, 1869, is distinguishable because it involved an instalment order and proof...

Citation
[1937] EACA 17
Parties
Appellant: Otto Markus; Respondent: Bracia Czeczowiczka
Court
East African Court of Appeal
Jurisdiction
Uganda
Judgment Date
1 January 1937
Case Number
C.A. 36/1933.
Procedural Posture
Civil Appeal / Appeal From Receiving Order Made by High Court
Outcome
appeal allowed
Judges
Abrahams CJ, Ag P (Uganda), Horne J, Sheridan CJ
Legal Topics
Committal for Non Payment, Receiving Order, Judgment Debtor Examination, Bankruptcy Proceedings, Instalment Orders
Source Language
English
Civil Procedure Banking and Finance Committal for Non Payment Receiving Order Judgment Debtor Examination Bankruptcy Proceedings Instalment Orders

Case Brief

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Parties

Otto Markus

Appellant

Bracia Czeczowiczka

Respondent

Procedural Posture

Civil Appeal / Appeal From Receiving Order Made by High Court

Legal Issues

  1. 1 Whether the court had jurisdiction to make a committal order against the judgment debtor for non-payment of the decretal amount.
  2. 2 Whether a receiving order under section 99 of the Bankruptcy Ordinance, 1930, could be made in the absence of an order for payment of instalments and proof of means.
  3. 3 Whether the interpretation of Order XIX, Rule 37, of the Kenya Civil Procedure Rules permits committal for failure to pay part of a debt.

Ratio Decidendi

The Court of Appeal held that under Order XIX, Rule 37, the power to commit a judgment debtor for non-payment of a decretal amount is limited to circumstances where there is an order to pay a specific sum that the debtor is shown to be capable of paying, and there is a refusal or neglect to pay that sum. The rule relates to the whole amount of the decree unless an instalment order is made. In the present case, there was no order for payment by instalments, and no sufficient evidence that the debtor had the means to pay the whole decretal amount. The English authority of In re Fryer, decided under the Debtors Act, 1869, is distinguishable because it involved an instalment order and proof...

Court Disposition

appeal allowed

Orders

  • The receiving order made against the appellant is set aside.
  • Costs awarded to the appellant in this Court and the Court below.