In Re: Maurice Battiscombe Tennent (Cause No. 27 of 1931) [1944] EACA 9 (1 January 1944)

## BANKRUPTCY JURISDICTION

## Before BARTLEY, J.

## Re MAURICE BATTISCOMBE TENNENT, Debtor Cause No. 27 of 1931

Bankruptcy—Judgment entered pursuant to conditional order of discharge—Conditions as to payment—Limitation for execution of judgment—Registration of judgment in Supreme Court—Civil Jurisdiction—Meaning of "judgment" in Bankruptcy Ordinance—Bankruptcy Ordinance, 1930, section 28 (2) (iv) -Bankruptcy Rules, 1927, rules 190 and 193. The facts appear sufficiently from the Order.

Held $(17-3-44)$ .—(1) That it is not obligatory on the Court to direct conditions as to the payment of the money secured by a judgment entered pursuant to a conditional order of discharge.

(2) That section 3 of the Limitation Ordinance, 1934, applies to the judgment.

(3) That the period of limitation for executing such judgment does not begin to run until the Bankruptcy Court sanctions an application under Rule 193 of the Bankruptcy Rules, 1927.

(4) That a judgment entered up under the Bankruptcy Ordinance in Bankruptcy should be registered in the Supreme Court Civil Jurisdiction side.

(5) That there was no objection to the Registrar of the Supreme Court now registering a judgment entered up in the Bankruptcy Court on the 11th February, 1933, as there<br>was no prejudice to the judgment-debtor in view of the limitation law governing the execution of the judgment.

Anderson for Official Receiver.

Archer for Judgment Debtor.

ORDER.—The Official Receiver has applied to the Court in Bankruptcy for leave to issue execution under rule 193 of the Bankruptcy Rules on a judgment entered on the 11th February, 1933, pursuant to a conditional order of discharge. Mr. Archer for the judgment debtor opposed the application on three grounds and it was agreed by the Official Receiver at the request of Mr. Archer that if the decision went in favour of the Official Receiver that the application should be further adjourned to enable Mr. Archer to file an affidavit as to the facts of the case which might influence the Court. The Official Receiver agreed on condition that the judgment debtor would give an undertaking not to dispose of the property which the Official Receiver desires to attach if the application is granted.

Mr. Archer's three grounds are:

(1) That the judgment entered was irregular in that it did not comply with the requirements of section 28 (2) (iv) of the Bankruptcy Ordinance, 1930.

(2) That the application was barred by limitation.

(3) That as the judgment was not registered in the Supreme Court it could not be executed.

In my view there is no substance in the first two objections. With regard to the first objection under section 28 (2) (iv) the Court can, and did in this case, require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the Official Receiver for part of the balance of the debts provable under the bankruptcy not satisfied at the date of discharge. Under the section the Court may direct conditions as to payment but in my view this is not obligatory on the Court though it is obviously convenient that an order as in Form No. 108 of the Bankruptcy Rules should be made.

With regard to the second objection I think it quite clear that section 3 of the Limitation Ordinance, 1934, applies and that the period of limitation is "12" years next after a present right to receive or have the same shall have accrued."

The third objection cannot, however, be so easily disposed of. In order to explain the difficulty it is necessary to quote Rules 190 and 193 of the Bankruptcy Rules and also to set out Rule 233 of the English Bankruptcy Rules, 1915. on which the Kenya Rule 190 is based.

Rule 190. (1) Where the Court grants an order of discharge conditionally upon the bankrupt consenting to judgment being entered against him by the Receiver or Trustee for the balance or any part of the balance of the debts provable under the bankruptcy which is not satisfied at the date of his discharge, the order of discharge shall not be signed, completed, or delivered out until the bankrupt has given the required consent.

(2) If the bankrupt does not give the required consent within one month of the making of the conditional order, the Court may, on the application of the Receiver or trustee, revoke the order or make such other order as the Court may think fit.

Rule 193. (1) An application by the Receiver or trustee for leave to issue execution on a judgment entered pursuant to a conditional order of discharge shall be in writing and shall state shortly the grounds on which the application is made. When the application is lodged, the Registrar shall fix a day for the hearing.

(2) The Receiver or trustee shall give notice of the application to the debtor not less than eight days before the day appointed for the hearing, and shall at the same time furnish him with a copy of the application.

Rule 233 (1) of the English Rules is word for word the same as Rule 190 (1) of the Kenya Rules except that the English Rule contains the following additional sentence: "The judgment shall be entered in the Court having jurisdiction in the bankruptcy in which the order of discharge is granted." The English Rule continues thus:

"(2) The Registrar of a County Court in which judgment is so entered shall forthwith make a return of the judgment to the Registrar of County Court judgments."

Sub-rule (3) of the English Rule is the same as sub-rule (2) of the Kenya Rule.

It will be seen that there is no provision in the Kenya Rule 190 for the entering up of the judgment in the Bankruptcy Court as there is in England although Rule 193 of the Kenya Rules, which is word for word the same as Rule 236 of the English Rules takes it for granted that the judgment is entered up as it is in England in the Bankruptcy Court. In this case the judgment was duly entered in the Bankruptcy Court so I see no difficulty with regard to this. A difficulty arises, however, in that there is no provision in the Kenya Bankruptcy Rules for the judgment to be registered in the Civil side of the Supreme Court which alone can execute a decree, the Bankruptcy Court having no machinery for the purpose. I have used the word decree in the last sentence advisedly for reasons which will appear.

In in re Bhagwandas Harjivan ex parte Turner (1884) 8 Bombay 511 an application for execution of judgment entered up under section 86 of the Indian Insolvent Act (11 and 12 Vic. 22) was made. Under section 86 of that Act the Insolvency Court was empowered to direct a judgment to be entered up in the Supreme Court as a condition for discharge, a judgment having been so entered up it was held that it must be executed under the provisions of the Civil Procedure Code. In in the matter of Candas Narrondas Insolvent (1887) 11 Bombay

138, which report contains the judgment of Scott, J., from which there had been an appeal. Scott, J., in dealing with a judgment so entered quoted the following extract from the judgment of Bayley, J., in in re Bhagwandas Hariivan (supra): "The Insolvent Court made the order. That order was taken to the Prothonotary of the High Court who thereupon entered up the judgment and the subsequent proceedings are to be taken under the provisions of the Civil Procedure Code." The judgment of Scott, J., continued: "Section 227 of the Civil Procedure Code, therefore, applies, and the judgment must be executed as if it had been made by the Court in the exercise of its original jurisdiction." Scott, J., was referring to section 227 of the Civil Procedure Code of 1882 which is reproduced in the Kenya Civil Procedure Rules, 1927, as Order 19 rule 6, and which reads as follows:

"Where the Court to which the decree is sent for execution is the Supreme Court, the decree shall be executed by such Court in the same manit had been passed by such Court in the exercise ner as if of its ordinary original civil jurisdiction, or it may be transferred by such Court for execution to any subordinate court."

It will be seen that that rule refers to the execution of a "decree" and not of a "judgment" and there is of course no provision in the Civil Procedure Code for the execution of a judgment nor is there any provision for the transfer of a judgment to the Supreme Court for execution. To my mind Scott, J.'s decision can only be read as meaning that a judgment entered up under the Indian Insolvency Act, 1848, was treated as decree for the purpose of execution. It is worth noting that under section 39 of the Presidency Towns Insolvency Act, 1909, which repealed the Act of 1848, the Court was empowered to require the insolvent as a condition of his discharge to consent to a "decree" being passed against him. It seems a pity that the word "decree" has not been used instead of "judgment" in the appropriate sections and rules of the Kenya Bankruptcy Law. In in re Kassam and Karmali, debtors (1938) 18 L. R. K. 29 my learned brother Lucie-Smith, J., put it on record that in his opinion a "judgment" under our Bankruptcy Ordinance is not the same thing as a "judgment" under the Civil Procedure Ordinance. With that view I would respectfully agree.

I have still to deal with the fact that there has been no registration in the Supreme Court Civil Side of the judgment entered in the Bankruptcy Court. In the Presidency Towns Insolvency Rules, Madras, provision is made for the Official Assignee filing a copy of the order of discharge and the consent of the insolvent to a decree being passed "with the Registrar of the High Court who shall draw up and register a decree of Court in accordance therewith." I can find no similar provisions in either the Calcutta or Bombay rules. In my view it is obviously essential that the judgment be entered up on the Civil Side of this Court before execution can issue. I am not of course dealing with an application for execution. I am dealing with an application to this Court in Bankruptcy under Rule 193 of the Bankruptcy Rules for leave to issue execution of the judgment entered up in this Court in Bankruptcy. If leave is granted then and only then will the machinery of the civil side of this Court be put in operation. I can see no objection to the Registrar of the Supreme Court now entering up or registering the judgment in the Supreme Court in its civil jurisdiction side. There can be no prejudice to the judgment debtor if this action is taken because the period of limitation for executing such a judgment does not begin to run until this Court in Bankruptcy sanctions an application under Rule 193 of the Bankruptcy Rules for leave to issue execution (in the matter of Candas Narrondas (1889) 13 Bombay 520).

I accordingly decide that none of the objections to the application for execution can be sustained. Costs in cause.