Case No.:

H C-RE V. 187. 1 959

Court:

The High Court

Issue No.:

1961

Principles

·  Civil Procedure—Civil Justice Ordinance, s. 135 (3)—Immediate attachment—Must show special circumstances

·  Civil Procedure—Civil Justice Ordinance, s. 135 (1) (a)—Attachment to prevent disposal of property—Must be based on facts proved

For an immediate order of attachment to he issued under Civil Justice Ordinance, s.135 (3). there must be a showing of special circumstances which may cause injustice to the applicant if the order is not given.
An order under Civil Justice ordinance. s.135 (i) (a) , must be based on facts proved.

Judgment

.(HIGH COURT)

CHRISTOS SIMOS v. YOUSIF NAOUM GANGI

H C-RE V. 187. 1 959

Advocates: Ahmed Suliman ... for the defendant-applicant

                      Abdin Ismail ……for the plaintiff-respondent

O.El Tayeb. Province Judge, Khartoum Circuit. January 23. 1960:— This matter is about an application under Civil Justice Ordinance, s.135. The application was submitted on January 18, I958 and various contra dictory orders were passed, the last one being on May 17. 1959, and none of them has considered the matter properly.

The first order was on January 18. I958 that ordered immediate attachment of the two respondents properties and fixed date for them to appear to show cause why such attachment should not remain. This order was intended to be under Civil Justice Ordinance, s. 13S (3). A Prohibitory Order was sent to Ottoman Bank, Khartoum, to block the accounts of both respondents, and an order c’f attachment was issued to the bailiff to attach movables of second respondent. The accounts were blocked and some movables were attached.

In the first place an application was submitted by the company known as Simos Corporation (Sudan), Ltd., claiming the movables attached. This application, as far as I can see, has not yet been decided upon.

Another application was submitted by second respondent objecting against the Prohibitory Order made on January i8, 1958, and applying for its removal. Without hearing and in the absence of applicant, the learned District Judge on May 12, 1958, made an order cancelling the Prohibitory Order in favour of second respondent.

Later on an application was made on behalf of first respondent objecting against the Pt Order and praying for its removal. In the mean time an application for revision from the order dated May 12, 1958, cancelling the .Prohibitory Order was made. On revision this order dated May 12, 1958. was set aside and the matter was sent back to the District Judge to proceed with.

Up to here the first Prohibitory Order remains in force. The learned District Judge proceeding with the matter, heard the evidence of the representative of second respondent and that of applicant himself and ordered on May 17, 1959, that the Prohibitory Order shall remain against both, first and second respondents, and an order was sent to the bank to block their accounts.

This revision lies against the said last order.

As I remarked above, the matter was not properly dealt with for two reasons:

1. 1The learned judge who first dealt with the matter, passed an order of immediate attachment instead of serving respondents applicants in this revision) with notice to appear and furnish security. Civil Justice Ordinance, s. 135, is in essence providing for furnishing of security in order to ensure the satisfaction of any decree that may be passed in the case. So it must be the first process  that the court must have in mind. In an ordinary case it is right and just and it is also good practice that the defendant should first be served with notice to furnish security or to appear and show cause  why he should not do so. This practice will lead to the fair hearing of the matter and for its disposal once and for all. In special cases and where the circumstances it, the order of immediate attachment may be made, if the court in the exercise of its judicial discretion thinks it necessary on the facts before it for the protection of the interests of the plaintiff. In this case I do not see the existence of special circumstances that warrant the making of such an order, and the learned judge mentioned nothing.

In subsection (3) there is no mention of special circumstance& but in interpreting the section one feels that an order of immediate attachment

should be after being convinced that the application of subsection (1) and (2) may cause injustice to the applicant. So the normal procedure is to call upon respondent to furnish security and if he fails then an order of attachment is to be made under Civil Justice Ordinance, s. 136. The logical inference s that the alternative procedure f immediate attachment should only be adopted in  special circumstances.

However, the passing of the order of immediate attachment in this case resulted in protraction, delay and unfairness to applicant in this revision.

.2 The second point which is more important than the first for the decision of the matter, is whether the court satisfied itself on sufficient grounds that defendants are about to dispose of or remove their properties from the local limits of the jurisdiction of the court. The court must satisfy itself on sufficient fact proved before it whether by affidavit or otherwise. “Vague allegations are insufficient. The power to attach is not to be exercised lightly and without clear proof of the mischief aimed at. The mere fact that the defendant in the past mortgaged or disposed of his property is not sufficient ground for levying attachment.” Mulla, Code of Civil Procedure ii (12th ed,1953).

From the affidavit that was first produced, and from the examination of applicant (respondent in this revision), I fail to see the proof of any fact from which it can possibly be inferred that second respondent (applicant in this revision) was about to dispose of any part of his property. It cannot be accepted from a court to say that it is satisfied or convinced that the defendant was about to dispose of his property, without indicating to facts proved before it, leading to the inference in question’.

The evidence in this matter is only about vague allegations that are insufficient to support an application Under Civil J Ordinance s. 135

For these reasons I have to order that the Prohibitory Order passed against second respondent and applicant be set aside.