In Re: Jama Sader Din (Bankruptcy Cause No. 25 of 1934.) [1934] EACA 18 (1 January 1934)

## BANKRUPTCY JURISDICTION.

## Before GAMBLE, Ag. J.

## In $\mathbb{R}e$ JAMA SADER DIN.

## Bankruptcy Cause No. 25 of 1934.

Held.-Where a receiving order is made and a debtor adjudicated bankrupt, execution against the person of the debtor will be<br>stayed unless it can be proved that the bankruptcy petition is in itself an abuse of the process of the Court.

ORDER.—The bankrupt was on 7-9-34 ordered to be committed to Civil imprisonment for non-payment of a debt of Sh. 300. On the same day a receiving order was made and the debtor adjudicated bankrupt.

This is an application that the debtor be released, in other" words that the execution proceedings against his person be stayed.

The power of the Court to stay pending proceedings is governed by section 11 of Ordinance XXXII/30. Such power is entirely discretionary.

Section 11 $(1)$ of the Ordinance is identical with section 9 of the English Act and the practice under the home Act is the practice to be adopted in this Colony when dealing with an application such as this.

In my opinion the English practice is to stay an order of committal unless the Court is satisfied that the presentation of the petition is in itself an abuse of the Court's own process. An exception to this rule is when committal is for non-payment of rates when it is of a punitive nature.

It is immaterial that the order of committal was antecedent to the receiving order, In rc Ryley cx parts the Official Receiver (15 Q. B. D. 329). Committal for non-payment of a debt is not a process for contempt of Court but a means to enforce payment.

On the authority of *In re Hancock* (1904, 1 K. B. D. 585), it is established that the Court never exercises its discretion adversely to a bankrupt's application for release unless it is proved that the proceedings are an abuse of the process of the Court.

I am unable to distinguish this case from $In$ re $Hancock$ and have no material before me on which I can properly come to a conclusion that the bankrupt's application is an abuse of the process of this Court.

It must be borne in mind that nothing will be brought about by the adjudication which ought to prejudice this creditor in any degree. The real effect of the receiving order will be that

the debtor will not be liable to pressure from time to time by the obtaining of a committal order against him: this probably was the intention of the legislature.

For the above reasons I order that the execution proceedings against the person of the debtor be stayed and that he be released from custody.

It would be more in conformity with English practice if the supporting affidavit contained an averment that the debt in respect of which the bankrupt has been committed was provable in the bankruptcy. However, as it has not been seriously contended that this debt was not so provable I do not feel disposed to adjourn the application for a supplementary affidavit.