Execution
~ Order to· pay by instalments
-Default-Execution-Civil
Procedure Rules. Order 40.
rule 8. and Order
43, rule 6. Damages-Attitude
on appeal.
The
above-named appellant No. 1 was
the judgment creditor in a
previous case. in which the
above-named respondent was the
judgment debtor. After judgment
in that case the judgment debtor
was examined as to his means to
pay the judgment debt and then
ordered to pay it off by
instalments. He paid one but not
the second or third. and then
the judgment creditor took out a
writ of ft. fa. for the
entire balance of the judgment
debt (viz. the judgment debt
minus the one instalment
paid); the charging plant of the
judgment debtor was seized and
sold by the auctioneer to a
purchaser (the persons named
above as appellants No.2 and
No.3). The judgment debtor then
sued them all to set aside the
sale as unlawful and claimed
special and general damages
besides. and he obtained
judgment on both claims; the
others appealed arguing (a)
that where an order is made
for payment of a judgment debt
by instalments under Order 40,
rule 8, of the Civil Procedure
Rules. in default of payment of
an instalment, execution can
issue for the entire balance of
the judgment debt. and, in the
alternative. (b) that the
damages awarded were excessive.
(Execution
under an order for payment by
instalments is regulated by
Order 43. rule 6. the text of
which is given in the judgment
on appeal infra.)
Held: The
order for payment by instalments
replaced the original decree in
. the judgment in the previous
case: there was no longer a
present debt of the amount of
the judgment debt but a debt
accruing due by so much a month;
and execution in default of
payment could not issue except
under an order of the Court
specifying the amount of the
instalment or instalments then
owing in respect of which
execution should issue;
therefore the execution for the
entire balance of the judgment
debt was wrongful and the sale
unlawful.
Held also: As
for the special damages awarded,
the amount thereof was warranted
by the evidence; and as regards
the amount of the general
damages, it could not be .said
that it was an entirely
erroneous estimate calling for
correction on appeal.
Case cited:-
(1) Flint
v. Lovell (19:15).1
K.B., at p. 360.
Appeal from
the Supreme Court by the
defendants: No. 74/50
J.
B. Danquah for Appellants.
AKufo Addo
for Respondent.
The following
judgment was delivered:
Foster-Sutton. P. In this
case the plaintiff claimed for
an order setting aside the sale
of a battery charging plant
belonging to him, on
the ground that the sale had
been effected under a wrongful
execution, and for the sum of
£140 special and £200 general
damages.
The second
defendant is a licensed
auctioneer who. acting upon the
instructions
[pg 46 ]
of the
Sheriff, sold the charging
plant, and the third defendant
is the person who purchased the
plant at the auction sale .. ~
The
circumstances leading up to the
seizure and sale of the charging
plant, briefly stated, are as
follows:-
On the 22nd
August, 1947, a judgment was
obtained by the first defendant
against the plaintiff and three
other persons for the sum of
£:330, and £:1:3 6s. 0d. costs.
The judgment
debt remained unsatisfied and on
the 14th July, 1948, the.
plaintiff was brought before
Jackson, j., under a " \\'
arrant of Arrest", who examined
him respecting his ability to
pay the amount owing under the
judgment I have already referred
to. As a result of that enquiry
the plaintiff was ordered to pay
the judgment-creditor, the first
defendant in this case, a sum of
30s. on the 20th day of each
month until such time as the
judgment debt was fully paid,
the first payment to be made on
the 20th July, 1948. The
plaintiff was then released from
custody ..
The plaintiff
paid the first instalment on due
date, but no further payment was
made by him until after his
charging plant had been seized
in execution. when he made a
payment of £93 10s. Oc1. On the
8th October, 1948, the charging
plant was seized under a writ of
fieri-facias, issued on
the 28th September, 1948. for
the whole of the amount then
owing in respect of the judgment
debt. At the date of the issue
of the writ two instalments of
30s. each remained unpaid. The
plant was sold to the third
defendant at a sale held by the
second defendant on the 16th
October, 1948.
This case was
tried by Korsah, j., who
delivered judgment for the
plaintiff against the
defendants, setting aside the
sale of the charging plant and
awarding him, as against the
first defendant, the sum of £140
by way of special damages and
£200 general damages. It is
against that judgment that the
first defendant has appealed.
Appellants'
Counsel argued that the learned
trial Judge erred in holding
that the seizure of the charging
plant was wrongful and its sale,
therefore, illegal. It was
submitted that where a Court has
ordered the payment of a
judgment debt by instalments,
under the provisions of Order
40, rule 8 of the Civil
Procedure Rules, and default In
the payment of an instalment is
made, execution can issue for
the whole of the amount then
owing under the original decree.
Alternatively, it was submitted
that the damages were excessive.
Order 43,
rule 6 regulates the procedure
regarding the issue of execution
where a decree orders payment of
money by instalments. For
convenience of reference it
reads as follows:-
" \Vhere a
decree orders payment of money
by instalments, execution shall
not issue until after default in
payment of some instalment
according to the order, and
execution, or successive
executions may then issue for
the whole money then remaining
unpaid, or for such portion
thereof as the Court orders,
either when making the original
order or at any subsequent
time."
The rule very
closely follows the wording of
section 61 of the United Kingdom
Execution Act, 1844.
In my opinion
the Order for the payment of the
judgment debt by instalments
took the place of the original
decree, and its effect was that
there was no longer a present
debt of £363 6s. 0d. due by the
plaintiff to the first
defendant, but a debt accruing
due by 30s. a month.
Where an
Order for the payment of a
judgment debt has been made
under Order 43, rule 6 it seems
to me 'that two conditions must
be satisfied before execution
can issue. Firstly, there must
be an instalment in arrear; and,
secondly, there must be an Order
of the Court specifying the
amount of the instalment or
instalments then owing in
respect of which execution shall
issue. In other
[pg 47]
words, there is a stay of
execution unless the leave of
the Court to issue execution has
been obtained
