Hirjee and Sons v Damji and Another (C.C. 320-1929)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Where property is attached in execution of decrees from multiple courts prior to receipt of assets, attaching creditors from both the Supreme Court and subordinate courts are entitled to share pro rata in the proceeds if the property covered by each attachment is the same. Creditors in subordinate courts need not transfer their decrees to the Supreme Court to participate in rateable distribution. Sections 46 and 50 of the Civil Procedure Ordinance deal with different circumstances: section 50 governs attachments in the same court, while section 46 governs attachments in different courts.

Outcome

Ruling given in favour of rateable distribution among all attaching creditors from different courts

Facts

Multiple creditors obtained attachment orders against the same judgment-debtor (Ramji Kara) from both the Supreme Court and the Resident Magistrate's Court between 20 November and 6 December 1929. The attachments totalled Sh. 8323/44. On 6 December 1929, Sh. 619/13 was paid into Court as a result of an attachment from the Resident Magistrate's Court, and on 16 December 1929, a further Sh. 1372/50 was paid in pursuant to a Supreme Court attachment, making a total of Sh. 1991/63. All attachments were ordered before the assets came into the Supreme Court. The Registrar sought a ruling on whether creditors who had obtained attachments in the Resident Magistrate's Court were entitled to share pro rata with Supreme Court attaching creditors, or whether they were required to transfer their decrees to the Supreme Court first.

Issues

1. Where attachment orders have issued from the Supreme Court and the Resident Magistrate's Court prior to the receipt of assets, should the attaching creditors share pro rata?
2. Are the rights of attaching creditors in the lower Court defeated if they do not transfer their decrees to the Supreme Court?
3. Where an attachment issues from the Resident Magistrate's Court and thereafter an attachment issues from the Supreme Court, does this fact vitiate the attachment proceedings in the Resident Magistrate's Court if the assets are not paid in before the Supreme Court attachment issues?

Orders

• Attaching creditors from both the Supreme Court and Resident Magistrate's Court to share pro rata in the proceeds where attachments were made prior to receipt of assets and the property covered by each attachment is the same.
• The rights of attaching creditors in the subordinate court are not defeated by failure to transfer their decrees to the Supreme Court.
• Distribution of assets in the present case and similar cases to follow the principle of pro rata distribution among all attaching creditors regardless of the court from which the attachment issued.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Ordinance (No. 3 of 1924) s.46
• Civil Procedure Ordinance (No. 3 of 1924) s.50
• Indian Code of Civil Procedure 1882 s.295
• Indian Code of Civil Procedure 1908 s.73

Cases cited (4)

• Civil Case No. 71 of 1929
• Civil Case 183 of 1925, Supreme Court at Mombasa
• Saleh Vani Dharsi & Co. v Ismail Rahimo (3 E.A.L.R. 46)
• Clark v Alexander (21 Cal. 213)

The original judgment as reported. Read the original PDF before relying on any passage.