Case No.:

(AC-Revision-2o-1960).

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Civil practice and procedure—Executions—Moveables-—Attachment of moveables unattachable under section 201 (1) (b), Civil Justice Ordinance.

In proceedings for execution by attachment of the judgment debtor’s move ables, the question whether the moveables sought to be attached are necessary for the judgment debtor to earn his livelihood, within section 201(1) (b) of the Civil justice Ordinance, is a question of law and for this purpose it is not necessary to prove that the tools, stock, etc.. are directly used in the judgment debtor’s trade or calling; it would be sufficient if their use is reasonably incidental to the trade or calling

Judgment

(COURT OF APPEAL)

NICOLA GEORGALIDES v. HASSAB EL RASOUL YOUNIS

(AC-Revision-2o-1960).

Revision

The court of first instance ordered the attachment of certain moveables, property of the defendant, in execution of a decree. This order was upheld by the High Court.

Advocates: Grais Asaad …………for applicant

                  Abdalla El Hassan…... for respondent

February 28, 1960. A. M. Imam J.: —This application is for the release of certain chattels attached in an execution debt. It is contended for applicant (and defendant) that these moveables are unattachable under section 201(1) (b), Civil Justice Ordinance, being such implements and stock of the judgment debtor’s calling as in the opinion of the court are necessary to enable him to earn his livelihood.

In the opinion of the court of first instance they were not such things. This opinion was upheld by the court below. I think there is merit in this application. The question: what is judgment debtor’s trade or calling is obviously one of fact. But the question whether such tools, stock, etc., are necessary to enable the judgment debtor to earn his livelihood is a question of law. To make them necessary as such it is not essential that they be directly used in such trade or calling; it seems it would be enough if their use is reasonably incidental to the trade or calling in question. Though the Indian provision is not identical to our section, yet it provides a similar rule as is mentioned above. In explaining the meaning of tools, etc., Mulla, The Code of Civil Procedure, 12th ed., states: “This clause should be liberally interpreted. A soap boiler who practises the art of making soap is an artisan and the paraphernalia of his soap factory are the tools of an artisan. So also arc utensils used for making sweetmeats p. 245.For the above, 1 think this case should he adjourned into the Court of Appeal to decide whether the property attached or any part thereof is reasonably necessary to enable the applicant to earn his livelihood.

                                                                                   (Application allowed)

May 10, 1960. A. M. Imam J.: —Both advocates agree that the case be remitted for re-trial of the following issue:

Issue: Is the property attached or any part thereof necessary to enable the judgment debtor to earn his livelihood?

Order: (1) the case is to be sent back for re-trial of the said issue in the light of the note dated February 28, 1960.

(2) We make no order as to costs.

Landlord and Tenant—Acceptance of Rent in Arrears—Estoppel

                                                                                  (Order accordingly)