Re: Sharaf Din so Faquir Mohamed (Bankruptcy Cause No. 60 of 1928) [1938] EACA 174 (1 January 1938)

BANKRUPTCY JURISDICTION

Before Sir JOSEPH SHERIDAN, C. J.

Re SHARAF DIN s/o FAQUIR MOHAMED, Debtor Bankruptcy Cause No. 60 of 1928

Bankruptcy—Application de novo for discharge after a previous application for discharge had been absolutely refused—Bankruptcy Ordinance, 1930, section 100.

The facts appear sufficiently from the judgment.

Held (29-11-39).—Where a discharge from bankruptcy has been absolutely<br>refused the bankrupt cannot apply *de novo* for discharge, there being no power to entertain such an application. In Re Tobias & Co., Ex parte Tobias (8 Mor. 30) followed. In Re Lloyd, Ex parte Lloyd (6 Mor. 297) referred to.

Anand for the Debtor.

Green for the Official Receiver.

JUDGMENT.—On the 6th December, 1935, the bankrupt Sharaf Din applied to this Court for his discharge and his application was refused by Horne, J. He now applies de novo for his discharge, the notice of the application having been published in the Official Gazette of the 17th May, 1938. In the light of the previous refusal the application cannot succeed. There were two remedies open to him, both prescribed by section 100 of the Bankruptcy Ordinance, which reads: —

- (1) The Court may review, rescind or vary any order made by it. - (2) Orders of the Court in bankruptcy matters shall, at the instance of the person aggrieved, be subject to appeal but no appeal shall be entertained except in conformity with such general rules as may for the time being be in force in relation to the appeal. - (3) Where by this Ordinance an appeal to the Court is given against any decision of the Official Receiver, the appeal shall be brought within twenty-one days from the time when the decision appealed against is pronounced or made.

He has adopted neither. The law on the question will be found in the case of In re Tobias and Co. ex parte Tobias, 8 Mor. 30, and the words of Cave J. at page 33 are relevant to the present case: "Where the discharge is absolutely refused, the bankrupt cannot apply de novo as a matter of right as was sought to be done here ... and indeed I agree with him (the County Court Judge) that he had no power to entertain the application, the refusal of October 31st, 1384, having been, as he says, an absolute refusal". The practice with regard to an application for review is referred to in the case of In re Lloyd ex parte Lloyd, 6 Mor. 27, in which it was held by Cave J. that it was necessary that the bankrupt should make out a prima facie case which the other side are not required to answer until the Court has determined whether or not it will grant an order for review. The application is dismissed.