In Re: of Somechand Bhoja, Karman Jeshanji, trading as S.K. Shah and Co. (Cause 84/1930;) [1930] EACA 110 (1 January 1930)

## INSOLVENCY JURISDICTION.

#### Before STEPHENS, Actg. C. J.

# IN THE MATTER of 1. SOMECHAND BHOJA; 2 KARMAN JESHANJI, trading as S. K. SHAH & Co.

# Cause $84/1930$ :

- The Civil Procedure Ordinance (No. 3 of 1924), section 40 (3) and 40 $(4)$ —release of judgment-debtor on his undertaking to apply to be declared an insolvent. Section 43-release on ground of illness. - The Bankruptcy Ordinance, 1925 (No. 1 of 1926), section 11power to stay pending proceedings. - $Held$ :—That it is on account of illness only that the Court can release a person who has been committed to prison under the Civil<br>Procedure, when he does not file his petition in Bankruptcy. But under Section 11 of the Bankruptcy Ordinance the Court has power to release the debtor on his presenting a bankruptcy petition.

## Hopley for judgment-creditor.

Seymour for debtor.

RULING.—Under section 40 (3) of the Civil Procedure Ordinance when a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court may inform him that he may apply to be declared an insolvent, and that he will be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.

Then section 43 $(3)$ empowers the committing Court or the Supreme Court to release a civil prisoner on the ground of his suffering from any serious illness.

It is only on account of illness that the Court can release a civil prisoner committed to prison under the Civil Procedure Ordinance when he does not file his petition in bankruptcy. But under section 11 of the Bankruptcy Ordinance the Court may at any time after the presentation of a bankruptcy petition, stay any execution or other legal process against the property or person of the debtor. In my opinion this gives the Court power if it wishes to release a civil debtor on his presentation of a bankruptcy petition. It is entirely discretionary with the Court. In the present case I see no reason why he should not be released and I therefore grant the application of the debtor without costs.