Gokaldas v Kanji (C.A. 25/1933.) [1937] EACA 10 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and HORNE, J. (Kenya).

## ODHAVJI GOKALDAS (Appellant) (Original Judgment Debtor No. $2)$

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## NAGJI KANJI (Respondent) (Original Judgment Creditor). C. A. $25/1933$ .

Uganda Civil Procedure Rules—Order XIX, Rule 19.

$Held$ (10-1-34).—That where an application for execution is made more than one year after the date of the decree, the intention is that<br>notice to show cause shall issue to the judgment debtor before an<br>order of attachment is made, and not, as was held by the High<br>Court of Uganda, after attac

Held Further.-That an attachment which is followed by a sale is as much part of the execution as the sale itself.

Figgis, K. C. (Patel with him) for Appellant.

Atkinson for Respondent.

Figgis.—The Order of 22nd October, 1932, distinguished between attachment and sale. Attachment is as much part of process of execution as sale. Notice to show cause was not served on judgment debtor prior to order of attachment in execution.

Atkinson.—Attachment and sale are essential parts of execution, and execution is not complete until sale takes place. If, after order of attachment, the judgment debtor had received notice to show cause, that would have been sufficient to cover the requirements of Order XIX, Rule 19.

Figgis replied.

ABRAHAMS, C. J., Ag. P.—This is an appeal from a judgment and two orders of Mr. Acting Justice Hearne in the High Court of Uganda. The short point is whether or no the learned Acting Judge erred in holding that, notwithstanding that a year had elapsed since the last order in execution, it was not necessary that a notice to show cause should issue prior to the making of an order by the Registrar for the attachment of the goods of the judgment debtor.

It is not necessary to set out in detail the actual facts of the case. Our decision depends, as Mr. Atkinson (who appears for the respondent) admits, upon the interpretation of Order XIX, Rule 19, of the Civil Procedure Rules. The material part of that rule is this: "Where an application for execution is made more

than one year after the date of the decree... the Court executing the decre shall issue a notice to the person against whom execution is applied for, requiring him to show cause, on a date to be fixed, why the decree should not be executed 'against him.''

The learned Acting Judge was of the opinion that, though notice to show cause prior to an order for sale is required by Order XIX, no such condition precedent exists for the validity of an order of attachment. He thought that this view was supported by the prescription of one form for attachment (Form 7, Appendix D) and another form for sale (Form 26, Appendix D), and that common sense required that a judgment debtor who had been lulled into security by long delay should not be surprised by an order for the sale of his goods, whereas unless notice prior. to attachment can be dispensed with a loophole is provided for the judgment debtor to dispose of the goods between the issue of the notice and the date he appears to show cause.

This case is, however, to be decided on the interpretation of the expression "execution" as used in Order XIX, Rule 19, and if the word is held to include attachment there is an end of the matter.

In Woodroffe and Ameer Ali's Civil Procedure, execution is defined as the enforcement by process of Court of its decrees and orders. Now in this instance, the process which the judgment creditor obtained from the Court to enforce its decree was attachment and sale—attachment being the preliminary necessary to sale. It seems to follow therefore that attachment is an integral part of the machinery of execution.

An examination of other provisions in the Civil Procedure Rules confirms this view. Order XIX, Rule 8 (2), states in short that every application for the execution of a decree shall be in writing, and shall contain among other particulars the mode in which the assistance of the Court is required, whether by the attachment and sale, or by the sale without attachment of any property. It is obvious from this that attachment followed by sale is as much part of execution as the sale itself. I would therefore allow the appeal, with costs here and in the Court below.

SIR JOSEPH SHERIDAN, C. J.-Mr. Atkinson, for the respondent, has conceded that if it be held that attachment of property is an integral part of execution this appeal must succeed, there having been no notice to show cause issued prior to the attachment. Order XIX, Rule 19, of the Civil Procedure Rules, in so far as it is material, provides:-

"Where an application for execution is made... more than one year after the date of the decree ... the Court executing the decree shall issue a notice to the person against

whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.

" (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay, or would defeat the ends of justice."

I may say that there is no question of sub-rule (2) applying to this appeal, for the learned trial Judge's decision was that, although a notice to show cause was a necessary preliminary to sale, it was not required prior to attachment. The meaning to be put upon the words of the rule—"shall issue a notice to the person against whom execution is applied for"-becomes clear when one considers the provisions of Order XIX, Rule 8, referring to the mode in which the assistance of the Court is required on an application for the execution of a decree; the relevant words are, "by the attachment and sale, or by the sale without attachment, of any property". These words, to which Mr. Atkinson's attention was drawn by the President, indicate very clearly, to my mind, that the notice referred to in Order XIX, Rule 19, must be issued prior to the application for attachment and sale. In fact, it appears to be clear that the Rules do not contemplate an application for attachment simpliciter. The meaning is also to be inferred from a consideration of sub-rule (2), and particularly of the words "any process in execution of a decree", from which it is clear that the notice must issue prior to the issue of an order for attachment and sale. I have been unable to find any support in any of the authorities referred to for the view taken by the learned Judge that the notice required by section 248 of the Code of Civil Procedure, 1882, or Order XXI, Rule 22, of the 1908 Code, which Order XIX, Rule 19, of the Uganda Code follows exactly, may be issued subsequent to the attachment and prior to the sale. It so happened in those cases that a sale had taken place, but I have no reason to think that, had no sale taken place, the attachment in the absence of the statutory notice would have been considered valid. I would allow this appeal, and set aside the judgment and orders of the Court below with costs in both Courts to the appellant.

HORNE, J.-Judgment read by Abrahams, C. J., Uganda. Appeal allowed. I agree.