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1. In this matter the Respondent seeks to have the Applicant's petition to have him adjudicated a bankrupt dismissed on the ground that the Court could not be satisfied that the requirements of Section 11(1) of the Bankruptcy Act, 1988 (the Act of 1988) have been complied with.

2. The Applicant has presented his petition under Section 11 as a creditor relying on an act of bankruptcy which it is alleged occurred within three months before the presentation of the petition and the facts on which he relies as evidence of an act of bankruptcy within that period are that: -

3. The said orders of fieri facias have been exhibited in this application and there was endorsed on each a statement in the following terms:-

4. In response to the petition, the Respondent filed an affidavit sworn by him on 10th February, 1999. He was cross-examined on that affidavit in this Court on 8th March, 1998. The Respondent also filed an affidavit sworn by Lorraine Connaire on 10th February, 1999. Ms. Connaire was not cross-examined on her affidavit.

5. In her affidavit, Ms. Connaire averred that a letter addressed to the Respondent was delivered at her home, 3 St. Patrick's Terrace, Patrick Street, Mullingar, Co. Westmeath in September 1998. She opened the letter and found that it was a letter dated 23rd September, 1998 from the Circuit Court Office, Mullingar. She exhibited a copy of the letter, which was a notice dated 23rd September, 1998 addressed to the Respondent at 3 St. Patrick's Terrace notifying him of the lodgement of the orders of fieri facias at the suit of the Applicant and that, unless the relevant amount was paid within four days, the County Registrar would proceed to levy execution. Ms. Connaire averred that she replied to the County Registrar by letter dated 24th September, 1998 and she exhibited a copy of the letter in which she stated as follows:-

6. Ms. Connaire also averred that she contacted the Circuit Court Office personally and was assured by a member of the staff that no further action would be taken in the matter. Finally, she averred that no sheriff or other officer or Court messenger attended at her premises following receipt of the said notice and her reply thereto.

7. On the basis of the cross-examination of the Respondent I find that the Respondent was aware that the notice dated 23rd September, 1998 addressed to him was delivered to 3 St. Patrick's Terrace and that the letter dated 24th September, 1998 was sent to the County Registrar at his instigation. That letter was misleading in two respects, in that it was not the case that there was nothing belonging to the Respondent at 3 St. Patrick's Terrace and it was not the case that the Respondent at that time normally resided at Kilglass, Strokestown, Co. Roscommon. I find that, although the Respondent at the time was not exclusively residing at 3 St. Patrick's Terrace, he was there a substantial portion of the time. In general, I find the Respondent's testimony to be replete with untruths and false innuendo.

8. The Respondent contended that the evidence adduced by the Applicant fell short of satisfying the Court that the Respondent had committed an act of bankruptcy within three months of the presentation of the petition on two grounds: first, the wrong address for the Respondent had been given in the orders of fieri facias and the wrong information had been given by the Applicant to the County Registrar; and, secondly, the returns to the orders of fieri facias by the County Registrar were wrongful and irregular. It was contended that the returns to the orders could be set aside by the Court or disregarded.

9. The issuing of execution orders, including orders of fieri facias , is one of the methods by which courts enforce their decisions. The issuing of such orders on foot of judgments and orders of this Court is governed by the Rules of the Superior Courts, 1986. Order 42, Rule 16 of the Rules of the Superior Courts provides as follows:-

10. That rule is, in substance, in the same terms as the 106th General Order of 1854 which was in force when The Law Relating to Sheriffs in Ireland , by Dixon & Gilliland was published in 1888. Apropos of the 106th General Order, the authors stated at page 224:-

11. As I have already indicated, I find that in September 1998 the premises at 3 St. Patrick's Terrace were for a substantial part of the time the Respondent's abode. Therefore, I hold that the wrong address was not endorsed on the orders of fieri facias and that wrong information was not furnished to the sheriff. In any event, even if the Respondent's averment that he "ordinarily resided and had a dwellinghouse at Kilglass" and his testimony that he only used the premises at St. Patrick's Terrace as an occasional residence, an office and an accommodation address were true, the orders of fieri facias would not have been rendered invalid by the statement of the Respondent's description and place of abode endorsed thereon.

12. The basis of the Respondent's contention that the returns to the orders of fieri facias were wrongful and irregular and should be disregarded is the assertion that the County Registrar did not act with due diligence in the performance of the duty imposed by the orders and, in particular, did not enter the premises at St. Patrick's Terrace, did not try to identify the goods of the Respondent therein and did not give an intimation to the Respondent of intention to levy execution. In relation to this ground, the Respondent relies on the decision of the Northern Ireland Court of Appeal In Re. Alexander, Bankrupt , (1966) N.I. 128.

13. The decision of the Northern Ireland Court of Appeal in In Re. Alexander is succinctly summarised in the head-note in the following terms:-

14. Section 21(5) of the 1872 Act was amended in Northern Ireland in 1929 by the Bankruptcy Amendment Act (Northern Ireland), 1929 and the provision, as amended, which was under consideration by the Northern Ireland Court of Appeal, was as follows:-

15. The words to which I have added emphasis were introduced by the 1929 amendment. In relation to those words, Lord McDermott, L.C.J., stated as follows at page 139:-

16. Later Lord McDermot, having stated that the findings of fact made by the trial Judge could not be regarded as a bona fide attempt at execution, went on to say at page 142:-

17. The provision of the Act of 1988 which corresponds to Section 21(5) of the Act of 1872, and the provision relied upon by the Applicant here, is Section 7(1)(f) which provides:-

18. In my view, the absence of the words "in the case of any such execution", which are to be found in the second limb of Section 21(5) of the Act of 1872, as amended in 1929 in Northern Ireland, from the second limb of Section 7(1)(f) is of no materiality and the decision In Re. Alexander is not distinguishable on that account only. It is clearly implicit in Section 7(1)(f) that the return of no goods made by the sheriff or county registrar referred to therein is a return on foot of execution under an order of any court. In principle, a return nulla bona which has been made without a bona fide attempt at execution must be open to challenge by a debtor as not constituting a "return of no goods" within the meaning of Section 7(1)(f) so as to amount to an act of bankruptcy. However, in this jurisdiction the sheriff or county registrar would have to be before the Court and would have to have an opportunity to be heard on such a challenge, given that such a challenge would impugn the conduct of a public officer in the performance of a duty reposed in him by a court. It is not necessary on this application to consider how that could be achieved in a proper procedural fashion.

19. In this case, all the evidence before the Court establishes is that Ms. Connaire, with the connivance of the Respondent, deflected the County Registrar away from No. 3 St. Patrick's Terrace by furnishing information which was untrue. It would absurd if a debtor could rely on specific inactivity of a sheriff or county registrar which was induced by false information furnished to him by, or with the connivance of, the debtor. That is all there is in this case and, in the circumstances, the Respondent, on whom the onus lies has not established that the returns dated 30th September, 1998 were made other than on foot of a bona fide attempt at execution so as not to amount to an act of bankruptcy within the meaning of Section 7(1)(f).

20. Accordingly, being satisfied that the Applicant has satisfied the requirements of Section 11(1) of the Act of 1998, I propose to sign an Order adjudicating the Respondent bankrupt.