CIVIL PROCEDURE — Partnership assets — No attachment for decree against partner for personal debt — Civil Justice Ordinance 1929, Order XV, r. 18 (1)

CIVIL PROCEDURE — Execution — Third party obstructing attachment  not liable to attachment and sale to satisfy original Judgment.

PARTNERSHIP — Assets — Execution not permissible to satisfy partner’s personal judgment debt’.

Attachment of certain movables allegedly belonging to judgment.debtor was obstructed by his partner, seeking to protect partnership assets. The partner was found guilty of obstructing the bailiff under Penal Code, s. 161, and ordered to stand in the shoes of the judgment-debtor.

On appeal from the District Court order of attachment and sale of the partner’s movables

Held: Execution of a money decree for a personal debt may not be had against property held in partnership (Civil Justice Ordinance 1929, Order XV, r. 18(1)) nor against the personal property of any third party other than a surety.

Abdel Magqed Imam, J., November, 1959:- This is an execution from Wad Medani District Court, No. 300-1958 of a money decree for the sum of £S.221 .760m/ms. passed in favour of Sheikh el; Amin el Hag Ahmed, merchant, against Sha’aibo Noah, petty trader.

On December 23, 1958, the judgment-debtor, Noah, was examined as to his ability to pay. He said: “I am out’ of work now. One of the merchants to whom I am also indebted has employed me on daily wages. I have not yet agreed with him. He has only offered me that I work with him.” Whereupon the decree-holder replied: “Judgment-debtor is the partner of one Babiker Abdel Mageed. Judgment-debtor has a house at Mayarno. Judgment-debtor has a radio and a chest. He has also other movables which I will point out.”

The District Judge passed an order of attachment of judgment-debtor’s movables to be pointed out by decree-holder.

On January 21, 1959, decree-holder reported that a certain Badawi Babiker prohibited the bailiff from duly carrying out the order of attachment. A warrant of arrest was issued.

Nothing seems to have happened till February 17, 1959, when the said Badawi Abdel Mageed, through his advocate, claimed certain property valued at £S.l00, evidently attached by the Registrar of the Court, and asked for its release from attachment.

The parties were heard and the District Judge found a prima facie case of obstruction and referred the matter to the Police Magistrate for prosecution. The District Judge did not hear and deteemine the claim submitted on behalf of the said Badawi Babiker.

But on July 13, 1959 decree-holder appeared and moved the Court. The District Judge made the following entry:

“          One Badawi Babiker Mohamed Abdel Mageed was found guilty under Sudan Penal Code, s. 161 for obstructing the bailiff from attaching the movables of judgment-debtor which caused the execution to lapse for such a long time and therefore he should step into the shoes of judgment-debtor himself.

Court: I agree.

Order: Attach movables of the said Badawi Babiker Mohamed Abdel Mageed ....“

The attachment was executed; the decree-holder applied for sale and warrant was accordingly issued.

Badawi Babiker Mohamed Abdel Mageed petitioned against the order of sale. This petition was dismissed. The reason given for the dismissal by the District Judge was:

“Remedy sought is not correct as there is specific order to ‘attach’ Badawi Babiker’s movables.”

Badawi, through his advocate, applied to the High Court for revision of this order of attachment.

1. Sudan Penal Code, s.161 reads asfollows.

“Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to three months or with fine which may extend to £S. 10 or with both, (Ed)

Upon representation of the application, my learned colleague and brother, the Judge of the High Caurt, Blue Nile Province, wisely and equitably passed the papers, as one of the disputing parties is his own father, to the Honourable the Chief Justice, who most graciously transferred them to me for disposal

As I see it, I think the order of sale should be cancelled. It is illegal. I am dumbfounded. I cannot see under what law or by what authority the District Judge made this order. Badawi is no party to the execution and was no party in the original case. In an execution of this sort, the property to be attached and sold must be that of the Judgment-debtor. Civil Justice Ordinance 1929, s. 193 reads:

“Every decree for the payment of money ... may be executed by the attachment and sale of the property of the judgment-debtor, or subject to the provisions of (Civil Justice Ordinancej s. 198 by his imprisonment, or by both.”

The only incident of which I am aware which gives a Court the power to enforce payment of money passed in a decree against a third party, is where the third party renders himself liable as surety under Civil Justice Ordinance 1929, s. 220(c), which reads:

“Where any person has become liable as surety —

(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of section 189

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.” (Italics added)

Civil Justice Ordinance 1929, s. 189(1), gives the Court power to determine questions in an execution between the parties or their representatives. It is true that Civil Justice Ordinance 1929, s. 189(3) reads:

“Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.”

But it is also true that this question had never arisen before the District Court and if it did, no Court could ever have possibly come to the conclusion that Badawi was a representative of Noah; the mere fact that he obstructed the execution upon an alleged claim of right does not make him a repasentative. It is clear that Badawi was no party. Neither is he a repreamlative of Noah.

kulla, Code of Civil Procedure 186 (12th ed. 1953) states

The term ‘representative’ in this section includes not only legal representatives’ in the sense of heirs, executors or administrators, but also ‘representatives in interest,’ that is, any transferee of the decree-holder’s interest, or any transferee of the judgment-debtor’s interest, who so far as such interest is concerned is bound by the decree.”

Examples given are: A purchaser, lessee or mortgagee from a judgment-debtor of property belonging to the judgment-debtor, and attached in execution of a decree against him, is a representative within the meaning of this section. Accordingly Badawi was not a “representative in interest”

For the above reasons alone I think the order of sale should be cancelled.

This unfortunate miscarriage of justice would not have taken place were it not for the utter failure of the District Judge to examine the judgment-debtor properly. Had he done so he would have discovered that the property referred to by the decree-holder when he stated “He has also other movables which I will point Out,” was, at least, partnership property: the decree-holder had admitted during this same examination that the judgment-debtor “is the partner of one Babiker Abdel Mageed,” Ha reached this conclusion, he would have refused to grant an order of attaclment in respect of that property since partnership property unless decreed is by law unattachable. Civil Justice Ordinance 1929, First Schedule. Order XV, r. 18(1) reads:

“Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.” (Italic added)

Civil Justice Ordinance 1929, First Schedule, Order XV, r. l8(l) shows that partnership property can never be seized and sold in satisfactions  of a decree unless it has been proved and decreed as such.

Mulla, Code of Civil Procedure 828-29 (12th ed. 1953) states:

“The object of this rule is to put an end to the practice of attaching in the ordinary way partnership assets under a judgment against a single partner in his individual capacity. The Scheme is based on broad head of public policy, namely the protection of commerce, and at the same time providing means for the realisation of decreted amount .. .. It, therefore, provides that no execution can issue against any partnership properly except on a decree passed against the firm or against the partners in the firm as such

If from the examination of the parties the District Judge was not satisfied that the property was partnership property, he ought to have allowed Badawi to exercise his right under Civil Justice Ordinance 1929, Orde XV, r. 23. and claim the goods and prove by evidence that they were partnership property or his own If he, the claimant, succeeded in that, then any further steps after the attachment would be unwarranted.

From the above, and had a full investigation been carried out in this dispute, it might well have turned our that the goods were partnership property, and as such unattachable, and that the warrant of attachment issued for their seizure was illegal, and that Badawi might well have been justified in resisting the attachment, depending of course on whether the Court had no jurisdiction whatsoever to issue that warrant. Let Badawi find peace in these words, that he might be a philanthropist who was punished for his benevolence

For the above reasons the order of sale is cancelled; appellant is to prove his claim under Civil Justice Ordinance 1929, Order XV, r. 23, if he so desires; the revision is allowed with costs taxed at £S.23660m/ms