Basira v. Kiharate and Anor. Civ. App. 1-M-71; 8/3/71 Mnzavas.

 

Basira v. Kiharate and Anor. Civ. App. 1-M-71; 8/3/71 Mnzavas.

On 10/2/70, the first respondent filed a suit against S. claiming Shs. 765/=. On 16/2/70, summons for orders were sent to S. notifying him to file his written statement of defence within 21 days of the service of the summons upon him. On 16/6/70 the case came up for mention and it was found that S had failed to file his written statement of defence and respondent successfully prayed the court for ex-parte judgment. On 10/7/70 he applied for execution of the decree by attachment and sale of S’s shamba. After the necessary preliminaries notice to settle terms of sale was issued on 22/8/70 and on 3/9/70, “proclamation of sale Order was issued. S’s shamba was eventually sold on 26/10/70. the appellant had objected to the sale of the shamba before the court broker effected the sale on the ground that the shamba was clan shamba, and on 26/10/70 when the court broker was in the process of selling the shamba he approached him and offered to pay all the decretal amount plus costs and court-broker’s fees but the court-broker refused to postpone the sale of the shamba the objector filed an objection in the district court claiming that the shamba sold belonged to the clan and prayed the court to set aside the sale. His application was dismissed on the ground that a clan shamba which has been sold by a lawful court order, as here, in satisfaction of a decree, cannot be redeemed merely because it s a clan shamba.

Held: (1) “What the objector prayed for and is continuing to pray for is to have the sale of the shamba set aside on the ground that the shamba is owned by a clan and not by the judgment debtor alone. Much as I would have liked to agree with the magistrate’s ruling I am of the opinion that this application has some merit. OR. 21 R. 87 of our Civil Procedure Code is to the effect that when, as in this case, an immovable property has been sold, a third party “holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in court;- ‘(a) for payment to the purchaser, a sum equal to five percent of the purchase money; and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.’” (2) “In  the present case the objector in compliance with his application to have the sale set aside deposited to the court a total of Shs. 2,935/= vide G. R. R. No. 863938 of 24/11/70. This amount was to cover the purchase price as well as court and court-broker’s fees.” (3) Appeal allowed and sale set aside.