Lobo v Walji and Another (Civil Case No. 157 of 1951 (Mombasa))

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

Held that a private transfer of attached property is not absolutely void but void only as against claims enforceable under the attachment. An alienation made for the purpose of satisfying the decree under which the attachment took place is not contrary to such attachment. The objector validly acquired ownership and possession of the goods on 26 April 1951 through settlement with the attaching creditor, before the defendants' subsequent attachment on 27 April. The attachment was set aside.

Outcome

Objector found to be owner and possessor of the goods at the time of attachment; attachment set aside

Facts

Savji Lalji contracted to build a house for Lobo on Lobo's plot. Timber Trading Co. obtained a decree against Lalji and attached his machinery and materials on the building site. The defendants later obtained a decree against Lalji but took no steps to execute it. On 26 April 1951, two days before the scheduled sale, Lobo, Lalji, and Timber Trading Co. reached a settlement: Lalji's contract was terminated, Lobo purchased the attached goods for Sh. 15,000 paid to Timber Trading Co., and Timber Trading Co. agreed to raise the attachment. The court broker released the goods on 27 April on instructions from Timber Trading Co., though the court order was dated 30 April. On the afternoon of 27 April, the broker re-attached the property on behalf of the defendants. Lobo had instructed an agent to take possession of the goods and continue building operations immediately after the 26 April settlement.

Issues

1. Whether a sale of attached property to satisfy the attaching creditor's decree is void against a subsequent attaching creditor under section 47 of the Civil Procedure Ordinance.
2. Whether an attaching creditor may raise an attachment without a court order by instructing the court broker directly.
3. Whether the objector acquired valid ownership and possession of the goods before the second attachment.

Orders

• Objection upheld.
• Attachment set aside.
• Costs awarded to the objector against the defendants.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Ordinance s.47
• Civil Procedure Code s.64

Cases cited (1)

• Kali Kumar Saha v Kali Prasanna Majumdar and Others (A.I.R. 1917 Cal 561)

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