Wakilii

In Re - Aleixo Conceicao Fernandes (Bankruptcy Cause No. 20-1936)

East African Court of Appeal · [1936] EACA 143 · 1936 Receiving Order Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Creditor's petition for receiving order in bankruptcy proceedings
Decision
Receiving order to be made against the debtor

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

An order attaching a debtor's salary on which nothing has been realized or paid does not operate as a stay of execution. Where a creditor has obtained such an order but has not implemented it, and the debtor has failed to comply with bankruptcy notices by payment or by satisfying the court of a counterclaim or set-off, a receiving order may be made. The test is whether the creditor has done anything in execution that prevents the debtor from paying the debt.

Outcome

Receiving order to be made against the debtor

Facts

The petitioning creditor held two decrees against the debtor dated 6 September 1934. The creditor obtained orders attaching half the debtor's salary each month in respect of each decree on 8 April 1936. Nothing had been paid on these orders or otherwise in satisfaction of the decrees. The debtor's salary was already attached by other decree-holders and the petitioning creditor would have had to wait a considerable period before receiving anything in order of priority. The creditor had not moved the court to serve the orders upon the debtor's employer, the Municipal Council of Nairobi, and consequently the orders had not been implemented. The creditor issued two bankruptcy notices on 29 May 1936 calling upon the debtor to pay the judgment debts or alternatively to secure or compound them or satisfy the court that he had a counterclaim or set-off. The debtor took no steps to comply with the notices. The creditor then issued a petition praying for a receiving order. The debtor resisted on the ground that the petition was premature because of the existence of the salary attachment orders.

Issues

  1. Whether the existence of an order attaching the debtor's salary, on which nothing has been realized or paid, operates as a stay of execution preventing the issue of a bankruptcy notice.
  2. Whether a receiving order can be made against a debtor who has failed to comply with bankruptcy notices where salary attachment orders exist but have not been implemented.

Orders

  • Preliminary point decided in favour of the petitioning creditor.
  • Held that bankruptcy notices rightly issued.
  • Receiving order can be made against the debtor.

Rules and key headnotes

Bankruptcy — Stay of Execution — Salary Attachment Orders
The existence of an order in favour of a judgment creditor attaching the debtor's salary, on which nothing has been realized or paid, does not act as a stay of execution for the purposes of bankruptcy proceedings.
Bankruptcy — Bankruptcy Notice — Compliance
Where a debtor has failed to comply with a bankruptcy notice by payment or by satisfying the court that he has a counterclaim or set-off sufficient to satisfy the judgment debt, a receiving order may be made against the debtor notwithstanding the existence of unimplemented salary attachment orders.
Bankruptcy — Stay of Execution — Test
The test for whether execution has been stayed is whether the creditor has in execution done anything which in fact prevents the debtor from paying the debt. Where a creditor has obtained a salary attachment order but has not implemented it, the creditor has not prevented the debtor from paying.
Execution — Salary Attachment — Priority
Where multiple decree-holders have obtained orders attaching a debtor's salary, such orders fall to be complied with in order of priority and not by means of rateable distribution.

Legislation cited (1)

  • Bankruptcy Ordinance 1930 s.3(1)(g)

Cases cited (3)

  • Re a Debtor [1902] 2 KB 260
  • Re Renison Ex parte Greaves [1913] 2 KB 300
  • Re H.B. [1904] 1 KB 94

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

In Re - Aleixo Conceicao Fernandes (Bankruptcy Cause No. 20-1936) [1936] EACA 143 (1 January 1936)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.