Sohanpal v Universal Industries Limited (Civil Suit No.. 1676 of 1953) [1954] EACA 7 (1 January 1954)

ORIGINAL CIVIL

Before CRAM, Ag. J.

PYARA SINGH SOHANPAL, Applicant (Plaintiff and Decree Holder)

UNIVERSAL INDUSTRIES LIMITED, Defendant and Judgment Debtor

Civil Suit No. 1676 of 1953

Civil Procedure and Practice—Summons in Chambers—Ex parte application by decree-holder for order to authorize court broker to break into store-Effect of section 45, Civil Procedure Ordinance-Duty of court broker-Costs.

The Court delivered to the court broker process to levy execution by attachment of movable property. He, finding the door of the judgment debtor's store locked against him, refused to break the lock in the absence of additional authority by the Court. The decree-holder then applied to the Court by summons. in Chambers for additional authority, at the same time submitting that the court broker had failed in his duty and that the application was redundant.

Held (19-1-54).—That, on receipt of process, the court broker had a duty to levy execution<br>as ordered, even if this entailed breaking the lock of the judgment debtor's store, and<br>this without further authority from the C applies to dwelling-houses only.

Decree-holder ordered to pay own costs of the application.

Cases referred to: Semaynes's Case, (1604) 77 E. R. 194; Hodder v. Williams. (1895) 2 Q. B.

663.

Harris for decree-holders.

Ex-parte.

RULING.—The decree-holder applies by chambers summons for an orderto authorize the court broker, to whom an attachment order on movable property has been delivered, to levy execution to break open a lock on the judgment debtor's godown so that property attached inside may be removed. His advocatefreely admits that he considers this application redundant, but states that he hasbeen compelled to bring it for directions owing to a refusal of the court broker to perform his duty. Attached to the affidavit accompanying the summons, is a letter from the court broker implying that he feels unable to break open the lock of the premises until he is so authorized by the Court.

From time immemorial it has been the duty of officers of the English courts, on receiving an attachment order of the court on movable property, to execute it forthwith. In my view, the same duty exists in this Colony. To delay, or to raise difficulties which have no substance, is a failure in such duty and such failure may result in a disciplining of the defaulting officer by the Court. In suchaspect, I consider my hand stayed in this instance, for I am aware that an element of doubt has existed in the minds of officers of this Court concerning: the propriety of breaking locks on all kinds of premises. To dispel misconceptions,.

therefore, it is my view that there is a duty on court officers to break locks when they are holders of the warrant of the Court, subject to the exceptions contained in section 45 of the Civil Procedure Ordinance which are plainly set forth and each of which applies to a dwelling-house. A study of these exceptions is recommended to court brokers. No prohibition relating to any premises other than dwelling-houses appears in section 45 or elsewhere in the Colony's law. This is in complete accord with English practice from very early times. (See Semayne's case, (1604) 77 E. R. 194). The maxim that a "man's house is his castle" extends only to his dwelling-house and, therefore, a barn or outhouse may be broken open by the sheriff to levy execution; so also a workshop: Hodder v. Williams, (1895) 2 Q. B.

663. It may be noted, in parenthesis, that in English practice no outer door whatever may be broken to make a distress for rent (Brown v. Glenn, 16 Q. B. 254). I dismiss the application. The decree-holder had remedies against the court broker but, instead, he elected to come into Court on this application (which in any event should have been by motion) which on his own showing he perceived to be redundant. He must, therefore, meet his own costs.