Immovable property levied upon without levying on movables : – on appeal, Federal Supreme Court sets aside High Court judgement ‘61

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IN 1961, the Federal Supreme Court set aside a High Court judgement on the ground that an immovable property (land) was levied upon by the marshal, without any previous levy on movables.

On appeal in the case of Singh versus Mc Loggan, the judgement of the court below was set aside on the ground that an immovable property was levied upon by the marshal without any previous levy on movables, as required by law.

The Federal Court noted that the marshal had no power to proceed to levy on immovable property, until he had first levied on movable property.

The appeal by Singh was allowed with costs.

The Federal Supreme Court was constituted by the Hon. Justices Sir Alfred Rennie, C.V.H. Archer and C. Wylie. The Federal Supreme Court noted that Order 36, r. 42 (i), of the Rules of the Supreme Court, 1955, requires the marshall, in executing a writ of execution, to levy on the judgement debtor’s movable property.

In the event of the movable property taken in execution being in the marshal’s opinion insufficient, he may under O. 36,r. 42 (2), proceed to levy on the judgement debtor’s immovable property .

Where the marshal purported to levy on immovable property without first levying on movables, the court held: Order 36, r. 42 (2), gives no power to the marshal to proceed to levy on immovable property, and the purported levy was consequently irregular and must be set aside.

APPEAL ALLOWED
Dr. F.H.W. Ramsahoye, with Mr. C.A.F. Hughes, appeared for the appellant; while Mr. C. R. Wong represented the respondent.

Justice Wylie, in delivering the judgement of the court, said: The appellant has appealed against a judgement of the Supreme Court of British Guiana dismissing his claim praying for an order that the levy on his land is cancelled and the sale conducted by the marshal of the Supreme Court in respect of the land be set aside.

The only ground of appeal that has been argued before this court is that the marshal is bound, in the execution of this writ, to levy first upon movables; and only after having done that is he authorised to levy on immovables.

The evidence given by the marshal, and the return made to the writ, shows in fact that no levy was made on movables; and, indeed, it has been conceded before us by counsel for the respondent that no such levy was made. There is no doubt that the writ did require the marshal to levy first on movables.

It was submitted to us at considerable length that this was a requirement of Roman-Dutch Law.

I agree with that part of the judgement appealed from, in which the learned judge states that in his opinion this question is not a matter of Roman-Dutch Law, but is now a matter of statute law in British Guiana. That follows, in my opinion, from the provisions of s. 3 and s. 75 of the Supreme Court Ordinance; and consequently the provisions of the Civil Law of British Guiana Ordinance are not relevant.

Rule 42 of Order 36 of the Rules of the Supreme Court, 1955, is the rule which now regulates the question as to what Order the marshal was to observe in levying on the property of the judgement debtor.

Paragraph (1) of that rule requires the marshal to levy upon and take in execution as much of the movable property of the party condemned to be pointed by the party at whose instance the writ was issued, or his agent, as will, in the marshal’s opinion, realize at execution sale proceeds sufficient to satisfy the judgement and costs. And there is a right given to the judgement debtor to point out any other movable property on which he would like execution to be levied first.

The evidence shows that the marshal proceeded to the property. He saw the present appellant (the judgement debtor) a little way from the judgement debtor’s house, told him he was going to levy, and he proceeded to the judgement debtor’s property to levy.

There is nothing to suggest that he took any steps to see that the judgement debtor pointed out property. He (the judgement debtor) was there, the marshal spoke to him, but he does not appear to have asked him to come along and point out property.

The marshal or the respondent has not given any evidence to indicate that a proper search was made for movables. The marshal did not even enter the appellant’s house.

And finally, there is no return on the writ at all with regard to movables. Whether there are movables or not, the levy cannot be completed until the return has been made to the writ on movables. It follows, therefore, that in this case there has been no levy on the movables. Paragraph (2) of the rule authorizes the marshal to levy upon immovables in the event of the moveable property being taken in execution being, in the marshal’s opinion, insufficient. And it goes on to authorize the marshal to levy on immovables to the extent in value of such part of the judgement creditor’s claim as will, in the marshal’s opinion, remain unsatisfied after the sale of the moveable property levied upon.

It is quite obvious that that rule gives no power to the marshall to proceed to levy on immovable property until he has first levied on movable property.

In this case, he did not do that; and it follows that he had no authority to levy on immovable property, that the purported levy is irregular and it must be set aside.

Accordingly, the appeal is allowed, the judgement of the court below (is) set aside, and an order made in the terms as prayed in the statement of claim. The appeal is allowed with costs.

Justices Rennie and Archer concurred.