(COURT OF APPEAL)*

MOHAMED YOUSJF EL HAG v. AUTOMOBJL CO. LTD.

AC-REV-317-1966

 Principles

·  Civil Procrdure_ Payment into court—Should not be executed by attachment and sale of property as an execution.

Money should be paid into court and in default party must be detained in prison until order is corn plied with
Plaintiff sued defendant for provisional attachment of the sum of £S.7oo.000m/ms received by defendant. District Judge granted the plainttif, the claim and ordered that the sum be paid into Court. When the defendant failed to pay, District Judge ordered provisional attachment and sale of his movable property and considered the matter as an execution proceeding Province Judge dismissed defendant’s application for revision summarily.
Held: When a party is ordered by the court to pay a sum of money into court; he must comply with such order personally. If he fails to dothis amounts to contempt of court and accordingly he must be detained in prison until the money is paid into court. It is wrong procedure in such case tcJ order attachment and sale of the party property and to consider the m as an execution.

Judgment

Advocates:  Ibrahim Ahmed Ibrahim……………………… for applicant

GraisAsaad……………………………………………for respondenet

Babiker Awadalla C.J. December 23, 1966: —This is an application against the decision of His Honour the Province Judge, Khartoum, dated. June 13, 1966, dismissing summarily an application to him against the order of the learned District Judge, Khartoum, for sale of appl goods purporting to have been attached under the provisions of Chapter XXV of the Civil Justice Ordinance. . -.

The facts of the case are as follows:

On February 17, 1964, respondents (plaintiffs in the suit), sued appli cants for recovery of a sum of £S.350.000m/ms alleged to be owing and due to them under a hire-purchase agreement for the hire of a Taunus motor-car delivered to first applicant on September 14, 1963, and also for recov’ery of the motor-car. Second applicant guaranteed performance of the hire-purchase agreement.

On July 2, 1964, respondents instituted proceedings for provisional attachment of a sum of £S.700.ooom/ms. alleged to have been received by first applicant from an insurance company for damage caused to the car in an accident.

In that application they contended that first applicant was bound by the hire-purchase agreement to pay that sum over to them.       

On July 5, 1964, the court granted the order claimed, despite the fact that first applicant contended that he had only received £S.500.000m/ms. First applicant applied for revision of that order to His Honour the Province Judge, and subsequently to Court of Appeal, but his applications were both dismissed summarily.

On March 2, 1966, first applicant was arrested and called upon to pay into court the sum of £S.700.000m/ms. and on being brought before: the court his learned advocate applied to the court to have applicant’s mdv ables attached and sold and the proceeds thereof deposited into- court. Th learned advocate for respondents—in- my view quite rightly—stated that the order was for payment into court of a sum of £S.700.000m/ms.

Nontheless the court passed an order for provisional attachment of the goods and proceedings were adjourned until April 21, 1966. On that d atc the learned advocate for respondents alone appeared but the court fru that the order of attachment was not executed and ordered another a tteflPt at execution. On May 11, 1966, it transpired that applicant’s movables were subject to several orders of attachment in various executions.

On May 2, 1966, and while the court was attempting execution of the o of attachment, the learned advocate for applicants, submitted an a pplcation to the High Court for quashing the attachment and sale pro c.ee on the ground that the provisions of Chapter XXV and Order XV of the Civil Justice Ordinance were not complied with. His Honour the Provinc Judge dismissed that application summarily for the reasons:

1. That it was first applicant himself who offered to have his property attached and sold, and

2. That his application for revision was out of time.

His Honour the Province Judge described the conduct of applicant as bein dilatory and merely calculated to impede the execution of the order. It is against that dismissal that this application is now being made.

In my view this application should be allowed. I entirely agree with the dews of His Honour the Province Judge as well as with his remarks about applicant’s conduct and I deplore the aspersions made against those remarks by the learned advocate in this present application.

But the question before the court is whether an order made under Chapter XX of the Civil Justice Ordinance for payment into court of a sum of money to prevent its alienation by the defendant can be executed by ittachment and sale of property belonging to defendant as if the order of payment into court were a money decree, in my view it cannot. Payment into court with a view to prevent mishandling of money claimed by laintiff as in the present case, presupposes the existence of the money irn defendant’s hands. In the case before us it was not denied by first applicant on July 5, 1964, that he had the money in his hands but he Si mply tried to assert that he had only received a sum of £S.500.000 and not £S.700.000m/ms and even that assertion he could not substan ti att The court was therefore correct in making the order and first ajp cannot be heard to state—after the lapse of nearly two years— that he had disposed of the money. If he did, then he has only himself thank and his neglect of the order amounts to a contempt of court. As such, the court has an inherent power to detain him in prison until the order is complied with. If applicant thinks he has property, which he can sell in order to have funds sufficient for compliance with the court order, then this is his own affair with which the court need not concern itself. The court’s attitude in treating the order of July 5, 1964,as a money decree is therefore wrong and that being the case, it is hereby directed to follow the procedure indicated above.

This application is therefore allowed and the order of attachment and sale of applicant’s property is hereby set aside. No order as to costs.

Osman El Tayeb J. Oecember 23, 1966: —I agree.