19900815 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASt N0.247 OF 1987 NATIONAL BANK OF COMUlERCE ••••••••••••••PLAINTIFF Versus PAULO KATOTO BUILDING CONTRACTORS ••••••••••••••••••••• RESPONDENT RUL I NG ' RUBA.MA, J. The Chamber Application made under s.48 of the'Civil P~oeedure Code and supported by an affidavit of the judgment debter is for the following Orders: (i) that the order of attachment of the judgment debtor•s house situated on Plot 195 and 196 Block 44 Kijitonyama Dar es Salaam be raised and set aside the sale of the same house, (ii) that the applicant be allowed to liquidate the sum owed to the respondent by monthly payments of 100,000/=, (iii)1. Any further order that the court may deem fit and (iv) Cests In his affidavit and oral presentation, the applicant does not dispute the fact that he owes the money to the respondent nor the fact that he had mortgaged a house ~ituated on plot No.195 and 196 .. . - 2 Block 44 Kijitonyama Dar es Salaam to the decree holder/respondent. He however calls in aid s.48 (1)(e) CPC. This is a proviso to s.48-(l) CPC which provides for properties no~ liable to attachment and sale in execution of a decree. The specific _exception (s,48(1)(e) CPC provides: "·•• that the following shall not be liable to .such attachment or sa~e, namely:- such residential house or building, or part of a house or building . occupied by the judgment debtor, his wife and dependant children for residential purposes". It has clearly been established in the affidavit, counter affidavit by the respondent and oral piesentations by the applicant and the respondent's counsel that the applicant, his wife, children and his other dependants are residing in the house which is the subject matter of this application; that the residential premises under consideration is not in the name· of the judgment debtor but his wife and lastly that the property has been attached by respondent because it had been mortgaged to them by the wife of the applicant/judgment debtor as security for the loan that had been granted to the applicant/judgment debtor. For this act the counter affidavit points out that the mortgagor ''had.waived the proteotibn of the law by voluntarily offering the same as a security for the loan extended to the judgment debtor/applicant, and .{""thatJ the decree holder has an option to exercise its rights under clause 9 of annex:ture "C" IJliortgage Agreement between the wife of the judgment debtor/applicant and the decree holder/respondeny. I accept the obvious maintained by the respondent that the house which is the subject matter of this application does in law belong to the applicant's wife; it does not jointly belong to the applicant and his wife and further that the applicant could only be covered by s.48(1) CPC if the house in question belonged "to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf". This notwithstanding, the generality of s.48(l)(e) CPC - 3 - weuld cever the house under consideration in the group that could not be attached and sold in execution of a decree: the purpose of the proviso is not to make a judgment debtor owning a_ house she.l terless the effect of attaching this property in this case is· to make its owner, wife of the judgment debtor shelterless as well as the judgment debtor and his children. M~ritorious as it appearsj the argument that the mortgagor had voluntarily forgone her statutory protection as provided by s.48(1)(0) CPC does not appear to me sound.· In the circumstances I grant the judgment debtor's application and make the following order: (ii) that the order of attachment of the judgment debtor's house situated on plot 195 and 196 Bleck 44 Kijitonyama Dar es Salaam is raised and the sale of the said house is set aside, (ii) that the applicant is hereby allowed to liquidate the sum owed to the respondent in accordance with his bral submission in court iie. payment of shs.1 million in a monthis time starting from now to ~ive him time to travel to Mwanza to taise the money. Following lump payment of shs.1 million, the applicant is to pay the respondent monthly instalment of shs.100,000/= till full liquidation of the money owed by him to the respondent. (iii) .... Costs ef the application to be borne by the applicant. \.,\. \__, -~~- Yahya Rubama Judge- 15 ■..8. 90