Re: Hassanali Hussein (Cause No. 8 of 1936) [1943] EACA 83 (1 January 1943)

BANKRUPTCY JURISDICTION

BEFORE SIR JOSEPH SHERIDAN, C. J.

•Re HASSANALI HUSSEIN, Debtor

Cause No. 8 of 1936

Bankruptcy Jurisdiction—Order rescinding receiving order and dismissing the petition on annulment of adjudication on ground that debtor has paid his

debts in full—Bankruptcy Ordinance, 1930, section 31—English practice.

On 4-3-36 receiving order was made on the debtor's petition; on 17-4-36 the debtor was adjudged bankrupt and on 4-12-42 the adjudication order was annulled on the ground that the debtor had paid his debts in full, whereupon the debtor applied for an order rescinding the receiving order and dismissing the petition.

Held (1-3-43).—That where an adjudication order has been annulled on the ground that the debtor had paid his debts in full the Court may follow the English practice and make an order rescinding the receiving order and dismissing the petition notwithstanding the fact that section 31 of the Bankruptcy Ordinance, 1930, contains no express provision for making such orders.

(Order as prayed.)

Khanna for the applicant (originally the debtor).

Anderson, Deputy Official Receiver.

RULING.—Mr. Khanna, who succeeded in obtaining an order annulling the adjudication in this bankruptcy cause on the ground that the debtor has paid his debts in full, has asked that further orders be made rescinding the receiving order and dismissing the petition. There is no express provision for making these two latter orders in Section 31 of the Bankruptcy Ordinance, but neither is there in the corresponding sections of the English Bankruptcy Acts, 1883 and 1914, the provisions of which are identical with Section 31. I have been referred to paragraph 159 of Volume II of Halsbury's Laws of England (Hailsham Edition) p. 128, where it is stated: "If an order of adjudication is annulled on the ground that the debtor's debts have been paid in full, the Court usually rescinds the receiving order and dismisses the petition at the same time". I have considered this statement as to the practice in England and propose to act on it. It may at first sight seem strange to make an order dismissing the petition, but I consider it is right to do so, even though proceedings including an order of adjudication followed on it. The reason for the practice to my mind is that in cases where either it is proved that the debts of the bankrupt have been paid in full or that a debtor ought not to have been adjudged bankrupt the proceedings are to be regarded as if they had not taken place or as I would put it that a pen is drawn through the whole proceedings ab initio. I make the orders asked for.