IN 1961 the Federal Supreme Court constituted  by Justices Rennie, Archer and Wylie,  set aside a levy on property of immovables because the marshal who levied made no return to the writ with regard to movables.

Execution was levied upon the immovable property of the appellant, Singh, to satisfy a judgment debt. The marshal did not inquire as to whether or not the appellant owned movable property and made no return to the writ with regard to movables.                   Order 36, r. 42 of the Rules  of the Supreme  Court, 1955 [B.G.], authorises the marshal to levy upon immovables in the event  of the movable property taken in execution being in his opinion insufficient, and in that event, to levy to the extent  of the insufficiency in value.

The Court held:  the levy was contrary to law. Appeal allowed. No cases referred to. Appeal by an execution debtor against a judgment of the Supreme Court of British Guiana  (Trial  Division – DATE, J.), dated  August  29, 1960, dismissing his claim  for an order to set aside  a levy upon immovable property and the sale thereof. F. H. Ramsahoye and C.A.F. Hughes for the appellant. C. R. Wong for the respondent. Delivering the judgment, Justice Wylie 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 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 the 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 ss. 3 and 75 of the Supreme Court Ordinance {B.G.} and, consequently the provisions of the Civil Law of British Guiana Ordinance [B.G.] are not relevant. Rule 42 of O. 36 of the Rules of the Supreme Court ,1955  [B.G.], 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, 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 point out the property. He was there, the marshal spoke to him, but he does not appear to have asked him to come along and point out the property.

The marshal nor the respondent gave no 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 authorise the marshal to levy on immovables to the extent in value of such part of the judgment  creditor’s claim as will, in the martial’s opinion  remain unsatisfied  after the sale of the movable property levied upon.

It is quite obvious that that rule gives no power to the martial to proceed to levy on immovable 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 should be allowed, the judgment of the court below set aside and an order made in the terms as prayed in the statement of claim. RENNIE, J:  I Concur. The appeal will accordingly be allowed, the judgment will be set aside and judgment entered for the appellant and the levy declared null and void and set aside.  The appellant will have the costs of the appeal and the costs of the trial in the court below. ARCHER, J: I also agree. Appeal allowed.