Wakilii

Noronha v Siqueira and Others (CA. 13-1931.)

East African Court of Appeal · [1931] EACA 2 · 1931 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from an order of the Supreme Court of Kenya concerning execution of a decree
Decision
Appeal dismissed; trial judge's order refusing sale of attached property pending determination of trust issue upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the trial judge had discretion under Order XIX rule 21 of the Civil Procedure Ordinance to refuse to order sale of attached property. The words 'unless it sees cause to the contrary' in the rule vest the court with discretionary power, including the inherent power under section 99 to defer execution. The trial judge properly exercised his judicial discretion by refusing to order sale pending determination of a separate suit concerning whether the attached property was trust property, as ordering sale would necessitate objection proceedings on the same issue already being litigated.

Outcome

Appeal dismissed; trial judge's order refusing sale of attached property pending determination of trust issue upheld

Facts

The appellant obtained a decree against the respondents and sought execution by attachment and sale of a plot of land registered in the name of the judgment debtor. The trial judge granted execution by way of attachment but refused to order sale 'for the present'. The refusal was based on the fact that another suit was pending in the Supreme Court of Kenya to determine whether the attached property was trust property. That suit had been heard and was awaiting judgment at the time of the appeal. The appellant contended that the trial judge had no discretion to refuse the order for sale under Order XIX rule 21 of the Civil Procedure Ordinance.

Issues

  1. Whether the trial judge had discretion under Order XIX rule 21 of the Civil Procedure Ordinance to refuse to order sale of attached property.
  2. Whether the trial judge exercised his discretion judicially in refusing to order sale pending determination of another suit concerning whether the property was trust property.

Orders

  • Appeal dismissed.
  • The respondent to have the costs of the appeal.
  • The order as to costs made in the Court below stands.

Rules and key headnotes

Civil Procedure — Execution of Decrees — Discretion to Refuse Sale
The words 'unless it sees cause to the contrary' in Order XIX rule 21 of the Civil Procedure Ordinance vest the court with discretionary power to refuse to order sale of attached property, and are not limited to cases where execution is prohibited by specific enactments.
Civil Procedure — Inherent Powers of Court — Stay of Execution
A court has inherent power under section 99 of the Civil Procedure Ordinance to defer the issue or operation of its own process for execution, and may in a proper case grant time to the judgment debtor or stay execution pending determination of related proceedings.
Civil Procedure — Execution — Refusal of Sale Pending Determination of Trust Issue
Where the question whether attached property is trust property is being litigated in another suit, a judge may properly exercise discretion to refuse to order sale of the property until that suit has been decided, to avoid determining the same issue in objection proceedings.

Legislation cited (8)

  • Civil Procedure Ordinance s.66
  • Civil Procedure Ordinance s.75(1)(h)
  • Civil Procedure Ordinance O.XIX r.21
  • Civil Procedure Ordinance O.XL r.1
  • Kenya Civil Procedure Code s.38
  • Kenya Civil Procedure Ordinance 1924 s.99
  • Indian Civil Procedure Code s.274
  • Indian Civil Procedure Code s.151

Cases cited (8)

  • Crake v Powell (10 L.J. 21)
  • Ishan Chunder Roy v Ashanooiah Khan (10 Cal. 817)
  • Eyre v Corporation of Leicester [1892] 1 QB 136
  • Strickland v Symons (22 Ch.D. 666)
  • Donald Campbell and Co Ltd v Pollak [1927] AC 732
  • Crowther v Elgood (34 Ch.D. 691)
  • Maxwell v Keun and Others [1928] 1 KB 645
  • Nanda Kishore Singh v Ram Golam Sahu (40 Cal. 955)

Full judgment

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

Noronha v Siqueira and Others (CA. 13-1931.) [1931] EACA 2 (1 January 1931)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.