[WILSON, P., ZEKIA, VASSILIADES and JOSEFHTDES, JJ;] COSTAS P. PAPADAKIS, ' Appellant (Respondent), ' ' • GEORGE S. STAVRINAKIS IN HIS CAPACITY AS TRUSTEE OF THE ESTATE OF COSTAS CHRISTOF1DES. Respondent (Applicant). (Civil Appeal No. 4365). Bankruptcy—Proceeds of saieunderwrit of movables-collected by the executioncreditor—No order can be made undersections 45
(2), 90 and 92 of the Bankruptcy Law, Cap.5, that heshouldpaybackto thetrustee in bankruptcyofJudgment debtor moneys so collected— Nor can suchorder bemadeunderthe inherent jurisdiction of the Court—Section 45
(2)(supra) regulates only the duties of the Sheriff as to goodstaken In execution and the proceeds of sale thereof,while in hishands. On August 22, 1961, the District Court, purporting to act under section 45
(2), 90 and 92 of the Bankruptcy Law, Cap. 5, and the "inherent powers of the Court", made an order direct ing the appellant, an execution—creditor, to refund to the trustee in bankruptcy of the judgment-debtor,the respondent, the sum of £904,700 mils collected by the appellant about five months before the order (viz. on March 24, 1961) from the Registrar of the District Court of Nicosia, under a writ of movables executed more than fourteen days earlier by the Deputy-Sheriff of the District of Limassol ; such payment ' having been made .by the said Registrar, under directions from a Judge, given upon the application of the appellant. Against that order of the 22nd August 1961 (supra)the execu tion-creditor appealed. The High Court allowing the appeal: Held : (I) The order appealed from could not be made under section 90 or 92 of the Bankruptcy Law, Cap.5, or under the inherent powers of the Court.
(2)Nor could it be made under section 45
(2)of the same law. Section 45
(2)merely regulates the duties of the Sheriff ast o goo-Is taken In execution and the proceeds from tttesale thereof, while in his hands and the section cannot form the 245 IMS Oct W COST** S. PAMDAKIS Ψ. GEORGE S. STAVRINAKIS ETC. 1962 Oct. 18 basisofan order, suchastheone complained of, made against the appellantin the circumstances of that case. COCTAS S. PAPAOAKIS V. GfcOROE S. SlAVKINAKIS Ι ΙΓ. Per curiam : The result of this appeal does not affect or prejudice any other rights which the trustee" in bankruptcy or any other person may havein connection with this matter Appeal allowedand the order appealed from set aside with costs hereand in the District Court payable out ofthe estate in bankruptcy. Appeal Appeal against the judgment of the District Court of Nicosia (A.S. Stavrinides, P.D.C. and Chr. ioannides, D.J.) dated the 22.8.61 (Action No. 194/61) wheichy ihi· ΛρηνΜ.ιηι was ordered to pay to the trustee in bankruptcy of the debtor the sum of £904.700 mils paid out to him by the deputysherifl", Nicosia, on the 24th March, 1961, as being the net proceeds of a sale in execution of the judgment of the 9th February, 1961. · · St. Pavlides for the appellant. G.S. Stavrinakis for the respondent. Thejudgment of theCourtwas delivered byVASSILIADLS.J. WILSON, P. : We are of the opinion that this case may be disposed of on the basis of the arguments which we have heard thus far without going intoall thegrounds of the appeal except the one which Mr. Justice Vassiliades will deal with when delivering the judgment of the Court. VASSILIADES, J. : As stated by the President of the Court, we think that this appeal can be determined on the short, but decisive ground,onwhich wc heard counsel onboth sides. We are of the opinion that the District Court could not make under section 45
(2)of the Bankiupley Law (Cap.5) the order complained of. The order was made on the application of the Official Receiver, based on "the inherent powers of the Court, and sections 45
(2), 90 and 92 of the Bankruptcy Law, Cap. 5". 246 It is clear, at this stage, that theorder sought, could notbe made under sections 90 or 92 of the Bankruptcy Law ; or under what the applicant invoked as "inherent powers of the Court", in this matter. What, therefore, remains asthe basis of the application is section 45
(2)under which theDis trict Court apparently purported to act,in determining the application. The order complained of, was made on the22nd August, 1961, against the appellant, an execution-creditor, to payto the trustee in bankruptcy of the judgment debtor, (the res pondent herein) the sum of £904.700 mils collected by the appellant about five months before the order (on March, 24th, 1961) from theRegistrar oftheDistrictCourtof Nicosia, under a writ of movables executed more than fourteen days earlier by the Deputy-Sheriff of the District of Limassol; such payment having been made by the said Registrar, under directions from a Judge, given upon the application of the appellant (Vide pages 8,9 and 12of therecord). Reading section 45of the Bankruptcy Lawinitscontext, we are unanimously of the opinion that regulating asit does, the duties of the Sheriff as to goods taken in execution and the proceeds from the sale·thereof, while in his hands,the section cannot form the basis of an order, such as the one complained of, made against theappellant in thecircumstances of this case. The appeal must, therefore, be allowed ; and theOrder appealed from, besetaside with costs here andintheDistrict Court, payable outof the estate in bankruptcy. What may, perhaps, be added to remove all doubt, is that theresult of this appeal does notaffect or prejudice any other rights which the trustee in bankruptcy, or any other person, may have in connection with this muttci. Ap/Wttl 247 lilhnwtf. 1962 Oct. 18 COSTAS S PAFADAK.IS Ψ. (JEOROE.S. STAVRINAKIS ETC. VassUiade'. s