Wakilii

Mohamed v El-Amri and Another (C.A. 8-1934)

East African Court of Appeal · [1935] EACA 15 · 1935 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from a receiving order made in lieu of committal to prison for failure to satisfy a judgment debt
Decision
Receiving order set aside and adjudication order annulled

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A receiving order under section 99 of the Bankruptcy Ordinance can only be made when the facts would have justified committal to prison under Order 19 rule 37(2) of the Civil Procedure Rules. Where no evidence establishes that the judgment debtor has means to pay and refuses to do so, or that he has been guilty of conduct justifying committal, a receiving order cannot be made. An insolvent has the right to appeal from both a receiving order and an adjudication order under section 100 of the Bankruptcy Ordinance.

Outcome

Receiving order set aside and adjudication order annulled

Facts

On 23 November 1933, judgment by default was entered against the appellant on several promissory notes. On 5 January 1934, a notice to show cause was issued under Order 19 Rule 34. The appellant appeared on 11 January 1934 and was examined as to his means. He offered to pay Sh. 20 per month, which the judgment creditor did not accept. The appellant was cross-examined about whether he had disposed of property prior to the suit. No evidence of means was given beyond the offer to pay. The court, with the consent of the judgment creditor, made a receiving order under section 99 of the Bankruptcy Ordinance in lieu of committing the appellant to prison. An adjudication order subsequently followed.

Issues

  1. Whether a receiving order can be made under section 99 of the Bankruptcy Ordinance when the facts would not have justified an order for committal to prison.
  2. Whether an appeal lies from a receiving order under section 100 of the Bankruptcy Ordinance, or whether the debtor must first apply to annul the adjudication order under section 31.
  3. Whether the receiving order ceases to exist once an adjudication order is made.

Orders

  • Appeal allowed.
  • Receiving Order set aside.
  • Adjudication Order annulled.
  • Costs awarded to the appellant.
  • Appeal fees to be a first charge on any monies recovered under this judgment.

Rules and key headnotes

Civil Procedure — Execution — Committal to Prison — Preconditions
Before a judgment debtor can be committed to prison for failure to satisfy a judgment debt, there must first be an order to pay the amount which the debtor is shown to be capable of paying, and secondly a refusal or neglect to pay the sum so ordered after means to pay have been established.
Commercial Law — Bankruptcy — Receiving Order — Jurisdiction to Make
A receiving order under section 99 of the Bankruptcy Ordinance can only be made in lieu of committal to prison when the facts are such as would have justified the court in making an order for committal under Order 19 rule 37(2) of the Civil Procedure Rules.
Commercial Law — Bankruptcy — Right of Appeal — Receiving Order and Adjudication Order
Whatever rights may be conferred on an insolvent by section 31 of the Bankruptcy Ordinance, the insolvent has the right under section 100 to appeal from a receiving order as well as from an adjudication order, both being orders in bankruptcy matters.
Commercial Law — Bankruptcy — Receiving Order — Continuation Until Discharged
A receiving order must be regarded as continuing to stand until discharged and does not cease to exist merely because an adjudication order has been made.

Legislation cited (11)

  • Civil Procedure Ordinance s.38(d)
  • Civil Procedure Ordinance s.66
  • Bankruptcy Ordinance s.31
  • Bankruptcy Ordinance s.99
  • Bankruptcy Ordinance s.100
  • Bankruptcy Ordinance s.100(2)
  • Civil Procedure Rules O.19 r.34
  • Civil Procedure Rules O.19 r.37
  • Civil Procedure Rules O.19 r.37(1)
  • Civil Procedure Rules O.19 r.37(2)
  • Court of Appeal Rules 1925 r.17

Cases cited (2)

  • Otto Markus v Bracia Czeczowiczka (1934) 1 EACA 17
  • In re a debtor ex parte the debtor (1905, 1 K.B. 374)

Full judgment

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Mohamed v El-Amri and Another (C.A. 8-1934) [1935] EACA 15 (1 January 1935)
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.