AMNA BINT YOUSIF, Applicant-Claimant v. RECEIVER IN BANKRUPTCY OF MAHMOUD ABDULLA BASYUNI, Respondent-Defendant AC-REV -58-1929
Appeal and Revision-Procedure-No revision possible when there is no court
order
Bankruptcy-Procedure-No revision possible when there is no court order
Applicant's' claim to be entitled, under a document signed by the hank-
rupt (applicant's husband), to rank as a secured creditor in his bankruptcy,
was rejected by respondent on the ground that applicant's claim was post-
poned by Bankruptcy Ordinance 1929, s. 44 (2). Respondent's decision was
not confirmed by order of the court conducting the bankruptcy proceedings.
On application to the Court of Appeal for revision of respondent's de-
cision it was
Held: (i) There can be no revision of the decision of the receiver in
bankruptcy; only the decision of a court can be the subject of an applica-
tion for revision .
• (ii) Where a creditor wishes to contest the decision of the receiver in
bankruptcy which has not been confirmed by a court order, the proper
course is for the creditor to raise the matter as a separate issue against the
receiver, before the court conducting the bankruptcy proceedings, under
Bankruptcy Ordinance 1929, s. 42.
(iii) The fees payable on raising such an issue are to be assessed in
accordance with Civil Justice Ordinance 1929, first schedule, order XXII,
rule 3 (3).
• Court: .Bell C.J.
Bankruptcy Ordinance 1929, s. 44 (2).
Civil Justice Ordinance 1929, Order XXII, rule 3 (3).
Application. for Revision
The facts as they appear from the record of proceedings are as
follows:
Mahmoud made, signed and sealed a document in favour of
applicant, his wife, in the following terms: "I admit . . , that I owe
to my wife Amna bint Yousif . . . 8% ozs. of gold . . ~ a debt and a
loan, . . . and I will pay it 'when she desires . . . and I have ap-
pointed for her my hosh in Kamlin and the bilad of Mohamed Hassan
Miras as a native mortgage in consideration of the above amount, and
if she asks for the amount and I delay, the house and the bilad shall
become her property. Sealed by Mahmoud Abdulla Basyuni."
Mahmoud became bankrupt, and applicant sought to prove the
document in the bankruptcy. The document was, admitted by the
receiver (respondent) 'as a valid claim valued at £E.51, but respondent
decided that the claim must be postponed to those of other creditors-
according to Bankruptcy Ordinance 1929, sec. 44 (2), since it was
a claim by _ a married woman in the bankruptcy of her husband.
Applicant applied for revision of this decision, claiming that she was
a secured creditor by virtue of the mortgage made to - her by Mahmoud
in the above document, and that sec. 44 (2) did not apply to secured
creditors.
July 29, 1929. Bell C.J. Where the receiver 'refuses to admit
a claim and the claimant wishes to pursue the matter further,' the
proper course is for the court to hear the matter as an issue, in other
words as a suit. Claimant has paid the . appropriate fees ,( vide
Bankruptcy Ordinance 1929, sec. 42 and Civil' Justice .. Ordinance
1929, First Schedule, Order XXII, rule 3 (3». : The proceedings
in the issue are then filed separately and do not form part of the
record of the bankruptcy examination.
As regards the £E.51 claim there appears to be no order of the
court, and so there can be no revision at this stage. The claimant;
if she- wishes to pursue the matter, can pay the fees, and the court
must give a decision as to whether the claim is postponed or not. The
50 P.T. paid on this application for revision may be taken into account
in part (or in full) payment of the fees.
Application summarily dismissed