[1935] EACA 15

[1935] EACA 15

The Court held that a Receiving Order under section 99 of the Bankruptcy Ordinance can only be made when the facts would have justified the Court in making an order for committal to prison under Order 19 Rule 37(2). In this case, there was no evidence that the appellant had been guilty of conduct specified in Order 19 Rule 37(2), nor was there proof of means and refusal to pay. Therefore, the Receiving Order and subsequent Adjudication Order were invalid. The Court further held that the appellant has a right to appeal from both the Receiving Order and Adjudication Order under section 100 of the Bankruptcy Ordinance, and that the Receiving Order persists until set aside. The appeal was...

Citation
[1935] EACA 15
Parties
Appellant: Sheikh Nassor bin Mohamed; Respondent: Ali bin Awath El-Amri; Respondent: Official Receiver for the Colony of Kenya
Court
East African Court of Appeal
Jurisdiction
Uganda
Judgment Date
1 January 1935
Case Number
C.A. 8/1934
Procedural Posture
Civil Appeal / Appeal Against Receiving Order and Adjudication Order
Outcome
appeal allowed
Judges
Abrahams CJ, Ag P (Uganda), Law, C.J (Zanzibar), Lucie-Smith Ag CJ (Kenya)
Legal Topics
Bankruptcy Proceedings, Receiving Order, Adjudication Order, Execution of Judgment, Right of Appeal
Source Language
English
Civil Procedure Banking and Finance Bankruptcy Proceedings Receiving Order Adjudication Order Execution of Judgment Right of Appeal

Case Brief

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Parties

Sheikh Nassor bin Mohamed

Appellant

Ali bin Awath El-Amri

Respondent

Official Receiver for the Colony of Kenya

Respondent

Procedural Posture

Civil Appeal / Appeal Against Receiving Order and Adjudication Order

Legal Issues

  1. 1 Whether a Receiving Order can be made under section 99 of the Bankruptcy Ordinance in lieu of an order of committal without proof of conduct under Order 19 Rule 37(2).
  2. 2 Whether the appellant has a right to appeal from a Receiving Order and Adjudication Order under the Bankruptcy Ordinance.

Ratio Decidendi

The Court held that a Receiving Order under section 99 of the Bankruptcy Ordinance can only be made when the facts would have justified the Court in making an order for committal to prison under Order 19 Rule 37(2). In this case, there was no evidence that the appellant had been guilty of conduct specified in Order 19 Rule 37(2), nor was there proof of means and refusal to pay. Therefore, the Receiving Order and subsequent Adjudication Order were invalid. The Court further held that the appellant has a right to appeal from both the Receiving Order and Adjudication Order under section 100 of the Bankruptcy Ordinance, and that the Receiving Order persists until set aside. The appeal was...

Court Disposition

appeal allowed

Orders

  • The Receiving Order is set aside.
  • The Adjudication Order is annulled.