THE answer to the question of whether a Marshal can levy on immovable property without first levying on movables is ‘No.’ The court has said such a levy is bad in law.
In an action in 196l, the Federal Supreme Court held that Order 36 r 42, gives no power to the Marshal to proceed to levy on immovable property, until he had levied on Movable property.Consequently, the purported levy was irregular, and was set aside by the court.

That Court in 1961 was constituted by Sir Alfred Rennie, Justices C.V. H. Archer and C. Wylie.
The appeal was brought by Singh against McLoggan.
In that case there was an execution where immovable property was levied upon without any previous levy on movables.
Dr. F. H. W. Ramsahoye with Mr. C.A.F. Hughes appeared for the appellant. Mr. C.R. Wong represented the respondent.
Justice Wylie who delivered the judgment said: The appellant has appealed against a judgment of the Supreme Court of British Guiana dismissing his claim praying for an order that the levy on his land be 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 the 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 the 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 judgment 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 Section 3 and Section 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 judgment 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 out by the party at whose instance the writ was issued or his agent as will in the Marshal’s opinion realise at execution sale proceeds sufficient to satisfy the judgment and costs, and there is a right given to the judgment 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, and he saw the present appellant (the judgment debtor) a little way from the judgment debtor’s house, told him he was going to levy and he proceeded to the judgment debtor’s property to levy.
There is nothing to suggest that he took any steps to see that the judgment debtor pointed out property. He 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 complete 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 authorises the Marshal to levy upon immovables, in the event of the movable property taken in execution being in the Marshal’s opinion insufficient, and it goes on to authotise the Marshal to levy on immovables to the extent in value of such part of the judgment 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 Marshal 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, and that the purported levy is irregular and it must be set aside.
Accordingly, the appeal is allowed, the judgment of the court below set aside and an order made in the terms as prayed in the statement of claim. The appeal is allowed with costs. The other Justices of Appeal concurred.
Written By George Barclay