F. And M. Khoury V. Sharani Brother (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Interim Attachment—Execution distinguished—Civil Procedure—Rules: Order 13, rule 3; Order 43, rule 16.

Facts

The respondents sued X for the price of tyres sold and took out under Order 13, rule 3, an order of interim attachment of the tyres “ pending the hearing and determination of the suit ”, under which order the tyres were seized by the Sheriff.

Later they obtained judgment against X and applied for a writ of fi. fa., but the writ was not issued as the appellants sued the respondents claiming delivery up of the tyres, which the appellants claimed were mortgaged to them under a bill of sale by X and which they alleged the respondents had wrongfully caused to be attached for sale by the Sheriff.

The trial Judge held that the respondents in fact had not proceeded to execution, and could not be ordered to deliver as they were not in possession of the tyres. The plaintiffs appealed, arguing that the Sheriff had seized and possessed the tyres as the agent of the respondents, and pointed to Order 43, rule 16, which provides that ” in every case of execution, all steps therein shall be taken on the demand of the party executing the decree, etc.”. (The relevant part of Order 13, rule 3, on interim
attachment is given in the judgment infra.)

Held

Order 43, rule 16, deals exclusively with execution of a decree and has no application to interim attachment under an order made under Order 13, rule 3, which is made for the preservation or safe custody of property pending judgment and under which the property attached is placed “at the disposal of the Court” and is not in the possession of either party to the suit.

Appeal dismissed.