Maxwell v Kalyanji and Others (Civil Case No. 762 of 1951) [1952] EACA 278 (1 January 1952)

## ORIGINAL CIVIL

#### Before BOURKE. J.

## JAMES ROBERT MAXWELL, Plaintiff

# (1) VALLABHBHAI KALYANJI, (2) NARANBHAI KALYANJI (trading as KALYANJI & SONS), AND (3) MANUBHAI B. PATEL (trading as RUARAKA FURNITURE COMPANY). Detendants

### Civil Case No. 762 of 1951

Practice-Civil Procedure Rules-Order 21, rule 52-Rights of owner of chattels mortgage—Objection proceedings.

The plaintiff was the holder of a chattels mortgage over certain property assigned to him by the 3rd defendant objected in certain proceedings to the 1st and 2nd defendants attaching such property in the possession of the 3rd defendant. He gave notice of objection under Order 21, rule 53, Civil Procedure Rules, and received notice under Order 21, rule 56, to file proceedings to establish his claim. The plaintiff thereupon filed an originating summons under Order 21. rule 57 (b), claiming that the following questions be determined: $-$

- (1) Whether the Court broker acting on the instructions of the judgmentcreditors was entitled to seize. - (2) Whether the Court broker, acting on such instructions, having seized and taken steps towards a sell, was entitled to sell. - (3) Whether the judgment-creditors have any right "to detain". - (4) Whether the plaintiff is entitled to the return of the chattels. - (5) Whether the plaintiff is entitled to compensation or damages in respect of the seizure, attachment and detention of the said chattels. - **Held** (9-6-52).—(1) The procedure laid down under the rules was to enable decision on originating summons as to whether a judgment-debtor's property has been attached or the property of somebody else.

(2) The questions in the originating summons are not competent to be put for answer by way of originating summons under Order 21, rule 58.

(3) The proceedings were dismissed with costs.

Kean for plaintiff.

D. N. Khanna for defendants.

JUDGMENT,—These are proceedings by way of originating summons under Order 21, rule 58, which have been adjourned into open Court for convenience. The two defendants obtained a judgment for an amount of money against M. B. Patel cited as the third defendant, and on their application an order for attachment was made against certain articles of furniture, tools and machinery in the possession of M. B. Patel, who traded as the "Ruaraka Furniture Company". The attachment order was served upon the Court broker, Mr. Mistry, who in pursuance thereof seized the property. The plaintiff gave notice of objection to the attachment under Order 21, rule 53, and a stay of execution through sale followed. The notice filed by the plaintiff set out the nature of this claim in respect of specified articles, namely, that they had been assigned and transferred to him by M B. Patel as grantor under a deed of chattels mortgage, duly registered

under the Chattels Transfer Ordinance, Cap. 281, to secure the repayment of Sh. 12,000 and interest. The attaching creditors on being notified of the stay gave notice of intention to proceed but to the extent only of seeking a sale of the judgment-debtor's right, title and interest in the property under section 39 of the Chattels Transfer Ordinance. The plaintiff received the usual notice to file proceedings as may be necessary to establish his claim under Order 21, rule 56, and he brought these proceedings by way of originating summons in pursuance of Order 21, rule 57 $(b)$ .

Mr. Khanna for the judgment-creditors—defendants (1) and (2)—has pressed the objection that the proceedings are entirely misconceived and incompetent under the rules under which they purport to be brought.

It is necessary to look to the originating summons. It is recited that the plaintiff objector claims to be the grantee under the instrument of chattels mortgage as described and the following questions are put for determination—I state them in abbreviated form: (1) whether the Court broker acting on the instructions of the judgment-creditors was entitled to seize and sell chattels comprised in the plaintiff's instrument of chattels mortgage; (2) whether the Court broker acting on such instructions, having seized and taken steps towards a sale, was entitled to sell only the right, title and interest of the judgment-debtor ín the said chattels: $(3)$ whether the judgment-creditors have anv right "to detain or cause to be detained, or attach, or intend to proceed with the attachment of the said chattels in any way or manner whatever" (4) whether the plaintiff is entitled to the return of the chattels to the place and position whence they were removed by the Court broker; (5) whether the plaintiff is entitled to compensation or damages in respect of the seizure, attachment and detention of the said chattels.

The form of this summons is certainly unique in my experience. Order 21. rule 53, enables a person to intervene in execution by attachment where he claims "to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached ...", and following rules provide how he<br>should set out to "establish his claim". In this case the objector's claim under the chattels mortgage has not been disputed; he admittedly has a legal interest as mortgagee and he has had intimation that it is sought only to sell the right. title and interest remaining in the judgment-debtor under section 39 of Cap. 281. It is submitted that this Court is not asked to determine a single question going to establish a claim by the plaintiff to an interest, legal or equitable, in the particular chattels, but on the contrary there are inquiries in a general form having nothing to do with the establishing of a claim to an interest in the sense of a legal or equitable title in the property. These questions, it is said, might arise for determination in an action, perhaps for damages in respect of wrongful appropriation and detention and involving an application for injunction, but cannot validly be posed for answer in Chambers on an originating summons under Order 21, rule 58. I find it very difficult to follow the argument advanced for the plaintiff. I think it amounts to this, that a claim to an interest under<br>Order 21, rule 53, is not limited to a claim by title of some kind but includes, for instance, the interest of the plaintiff, having regard to his mortgage, that his chattels charged should not be removed from the custody of the grantor, M. B. Patel.

$I$ am of the opinion that the argument for the judgment-creditors must succeed. Clearly, to my mind, the rules are devised to effect a procedure towards the protection of an objecting third party who can establish a claim to a right of possession or ownership superior to anything resting with the judgmentdebtor against whom it is sought to execute on a judgment. You cannot recoup

vourself out of the proceeds of property to which a person other than your judgment-debtor is entitled; and the present judgment-creditors do not seek to do this. Here the plaintiff does not move to establish a claim to a legal interest in the property under the chattels mortgage. He asserts the existence of the mortgage and no one disputes his interest thereunder. The judgment-creditors seek to recover out of a realization of the reversionary right, title and interest vested in the judgment-debtor-the grantor under the instrument of mortgage. I do not see that the plaintiff is entitled to be advised by the Court in these proceedings as to whether the creditors and the Court broker have gone about matters in a correct way or are entitled to do what they did; whether they are bound to return the chattels and whether they are liable to pay damages in respect of a wrongful seizure and detention. In my opinion the procedure laid down under these rules enable decision on originating summons as to whether, broadly speaking, a judgment-debtor's property has been attached or the property of somebody else. No question reserved goes to that issue for the reason. No doubt that the plaintiff's claim to an interest has not been in dispute from the moment he drew attention to its existence through the notice given under Order 21, rule 53.

It is a fact, never disputed by anyone at any time, that the plaintiff has a legal interest in part of the property attached. The questions put to a determination as to whether the broker and the judgment-creditors have acted wrongfully in violation of the plaintiff's rights at law and as to how they are entitled to act and whether the plaintiff can be recouped in damages; on all this argument has been offered as to the true construction of section 39 of the Chattels Transfer Ordinance, I agree and so hold that these are not questions involved in the establishing of a claim within the rules; in my opinion they are not competent to be put for answer by way of an originating summons under Order 21, rule 58. The proceedings are misconceived and must be dismissed.

But lest another view might prevail elsewhere and since each side has led evidence, the submission to competency being put forward in final address, I think it as well briefly to set out my findings of fact on the evidence before this Court. The plaintiff admittedly and as is proved seized in attachment under the instrument of mortgage of 16th August, 1950, exhibit A duly registered in accordance with the provisions of the Chattels Transfer Ordinance. The part of the said property is (subject to what I have to say about item No. 7) all those items set out at page 2 of exhibit A with the exception of the items numbered 6, 10 and 11. As to item 7 there is no evidence satisfactorily identifying it as the wood-working lathe in fact taken from the possession of M. B. Patel. The Court broker found no number on it as is given opposite the item in exhibit A and there is no evidence of identification by any witness. I find that the Court broker advertised the sale of the property outright as shown in the copies exhibits B and C taken from the issues of the East African Standard newspaper of 13th and 14th June, 1951. By those advertisements there is no intimation of an encumbrance existing or that the sale was limited to the right, title and interest of the judgment-debtor; the first acknowledgment that the sale is to be so confined appears in the notice filed by the judgment-creditors of 15th June, 1951, under Order 21, rule 56. I find also that when Mr. Mistri, the Court broker, attended at the premises of M. B. Patel to effect seizure, the judgment-debtor informed him in the presence of the judgment-creditors that there was a chattels mortgage covering the property in the amount of Sh. 6,000 and that the judgmentcreditors thereupon said that the articles were worth more than that and instructed the broker to carry on an effect the seizure, which he duly did, acting, as he says, in pursuance of the Court order to attach.

The proceedings are dismissed with costs.