[1951] EACA 327

## APPELLATE CIVIL

## Before WINDHAM, J.

S. J PATEL, Appellant (Original Defendant)

$\mathbf{v}$ .

PUNA SINGH, Respondent (Original Plaintiff)

## Civil Appeal No. 50 of 1950

(Appeal from decision of the R. M.'s Court at Nakuru-W. H. Goudie, Esq.) Attachment before judgment—Civil Procedure Rules, Order 38, rule 1 (a).

The plaintiff sued the defendant for goods sold and delivered. The defendant was a married woman and was in India and her husband an undischarged bankrupt carried on business in his wife's name. The plaintiff applied for attachment before judgment or security on the ground that the defendant's husband had been ordered to remove the shop goods and quit the shop by the landlord on whose land the shop was situate.

Held (31-5-51).—Order 38 (a) rule 5, provided that the disposal of the property about to<br>be effected must be with intent to obstruct or delay the execution on any decree. This was not the present case. Appeal allowed with costs to the appellant.

Harris for appellant.

$\mathcal{L} = \mathcal{L} \mathcal{L} = \mathcal{L}$

$\mathcal{F}_{\mathcal{A}}$

Sirley for respondent.

JUDGMENT.—This is an appeal under section 64 of the Civil Procedure Ordinance against a ruling of the Magistrate's Court dated 13th October, 1950, refusing to set aside an earlier order of attachment dated 24th July, 1950, which the learned Magistrate made upon an application under Order 38, rule 5, of the Civil Procedure (Revised) Rules, 1948. Both the original attachment order and ruling refusing to set it aside were made by the learned Magistrate on the strength of affidavits submitted in support of the application for attachment and in particular upon allegation in these affidavits, $(a)$ that the defendant (the present appellant) was in India, which was not denied, and $(b)$ that the defendant, who was the owner of a shop in Kenya, was given notice to quit that shop by 7th July, 1950, namely some seventeen days before the application for attachment, and (c) that the defendant's husband, who was occupying and running the shop in her absence, had been ordered to remove the goods from the shop before the end of the month. Now although these facts might have satisfied the learned Magistrate that the defendant was "about to dispose of the whole or any part of her property" as laid down in paragraph $(a)$ of Order 38, rule 5, there was no evidence on affidavit or otherwise before the learned Magistrate, nor even any record of any submission to him, that could possibly have satisfied him as to that other vital requirement of rule 5, namely that the disposal of the property was about to be effected by the defendant "with intent to obstruct or delay the execution of any decree" that might be passed against her. Rule 5, lays down that the Court must be satisfied on this point before security or attachment can be ordered under it. The Court may, of course, be satisfied from the circumstances. But in the present case it could not have been so satisfied. The defendant had been absent in India for many years, so that there was no sinister significance in her having gone there; and the fact that she had been ordered to quit her shop and remove her goods from it, so far from suggesting any intent on her

part to obstruct or delay the execution of any decree against her, suggests rather that she was a passive agent in the matter, the action being taken not by her but by the person or authority so ordering her. The learned Magistrate does not appear to have addressed his mind to this requirement of rule 5, and I cannot of course assume that there was evidence before him, not appearing on the record, which might have satisfied him on the point. For this reason alone the appeal must be allowed, the decision of the learned Magistrate reversed, the order of attachment dated 24th July, 1950, set aside and the Sh. 200 security paid into Court by the defendant will be restored to her. The matter is referred back to the Magistrate's Court, who will award to the defendant-applicant against the plaintiff-respondent such amount, if any, as the Court may deem a reasonable compensation to the defendant for the expense or injury caused to him by the making of the order of 24th July, and the refusal to set it aside. The defendant to have her costs of this appeal and of the application dated 13th October, 1950.

d.