Rex v Hemraj (C.C. 369/1930.) [1930] EACA 98 (1 January 1930)

## ORIGINAL CIVIL.

## Before SIR JACOB BARTH, C. J., and DICKINSON, J.

## REX (through Mepa Vershi & Brothers) $(Applicants)$

## POPATLAL HEMRAJ (Respondent). C. C. $369/1930$ .

$\boldsymbol{v}$ .

Civil Procedure Ordinance, 1924, section 47—private alienation of.property after attachment to be void.

- Civil Procedure Rules, 1927, Order 19, Rule 63—notification of sales by public auction. - $Held:$ —That the applicant was not a party to the suit and was not<br>before the Court, and the Magistrate had on that ground no jurisdiction to rule that his registered lien was void as against the order in execution.

Phadke for applicant.

Shapley for judgment creditor.

JUDGMENT.—These proceedings arise out of an order of the Resident Magistrate, Nairobi, declaring that a lien dated 6th June, 1930, on Plot 209/1243 in Nairobi, is void as against an attachment of the plot in execution of the judgment in Civil Case 1988/30 of his Court-Popatlal Hemraj versus Ladha Parbat.

The relevant entries on the Register are $(4)$ and $(5)$ . The first (4), is the prohibitory order of 6th June, 1930, from the. Resident Magistrate prohibiting Ladha Parbat from " alienating (transferring or charging) " the plot by "sale gift or otherwise until further order "... This was noted as received at 12.40 p.m.

The second entry (5), is that of a lien dated 6th June, 1930, presented on 6th June (v. Mr. Snelgar's evidence).

It is noted on the memorandum of lien as presented 7/6/1930, time 10.20 a.m. It is urged that the learned Magistrate had no power to hold that the lien was void by reason of the amount which it is alleged was over Sh. 7,000, by reason of the fact that the applicant was not a party and by reason that the Magistrate's ruling affected a registered document. The respondent's case is that Order XIX, Rule 63, is judicial and not ministerial, that it should not be possible to register a subsequent lien and thus frustrate execution, and that under the Registration of Titles Ordinance sections 26, 28 and 32 the prohibitory order is prior. It was also urged that a second lien by way of deposit of title deeds was an impossibility.

In my view this Court is not at present concerned with the possibility of having two liens by way of deposit of title deeds but solely with the question of the learned Magistrate's jurisdiction.

The applicant was not a party to the suit and was not before the Court, and I am of opinion that apart from the sum which the lien purported to secure, the Magistrate had on that ground no jurisdiction to rule that his registered lien was void as against the order in execution. (In re Shephard Atkin versus) Shephard, 43 Ch., Div. 131). Order XIX, Rule 63, is similar to section 287 of the Indian Code of Civil Procedure, 1882 and Order XXI, Rule 66, of the Indian Code of Civil Procedure, 1908. The Indian provision had been held in a series of cases. (cf. Sivangam versus Subrahmania (1904). 27 Madras, 259; Chidambaram versus Theinanai (1923), 46 Madras, 768; Lauka versus Lauka (1924). 46 Madras, L. J., 192), to be ministerial and not judicial, and I see no reason to differ from that finding which if I may say so with respect appears to be the only possible one in view of the provisions and purpose of the rule.

The appropriate remedy open to the respondent is in my opinion under Part XIV of the Registration of Titles Ordinance, and not by seeking to impugn a third party's security in execution proceedings in the suit.

The order declaring the applicant's lien to be void as against the execution creditor is set aside, the respondent to pay the costs of these proceedings.