Prakash v Lala [2013] FJHC 570; HBC305.2010 (1 November 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 305 of 2012

BETWEEN:

PARVEEN PRAKASH of Namadi Heights, Suva, Fiji, Businessman.
PLAINTIFF

AND:

GYANESHWAR PRASAD LALA of 94 Waimanu Road, Suva, Solicitor t/a G. P. LALA & ASSOCIATES
DEFENDANT

BEFORE : Acting Master Thushara Rajasinghe

COUNSEL : Mr. S. Singh of Parshotam Lawyers for the Plaintiff

Date of Hearing : 11th October, 2013
Date of Ruling : 1st November, 2013

RULING

1. INTRODUCTION
   

1. The Plaintiff filed this Summons seeking following orders, inter alia,
   
   1. There be a sale of the property contained in certificate of Title No 14869 being Lot 2 on Deposited Plan No 3829 (the Property) pursuant to the default judgment entered on and registered against the said certificate of title,
      
   2. A call for tender be made in the Fiji Times by the Plaintiff,
      
   3. Tenders be closed within 4 weeks from the date of the advertisement for the call of the tender,
      
   4. The Plaintiff be at liberty to accept the highest tender received,
      
   5. That the chief Registrar of the High Court of Fiji execute a transfer of the property and every other document incidental to the said Transfer on behalf of the Defendant and the joint owner Daimon Devi Lala to enable registration of the transfer of the successful tender,
      
   6. The monies received from the sale be applied as follows;
      
      1. The Home Finance Company Limited as mortgagee be paid the sums owing to it at the date of sale,
         
      2. Daimon Devi Lala be paid half of the balance of the sale proceeds after the deductions by Home Finance Company Limited in respect of the sums due to it as mortgagee have been made,
         
      100. The Fiji Islands Revenue and Customs Authority be paid the amount due to it on the Charge it has lodged on the property, being Charge No 572582,
           
      4. The plaintiff be paid the balance of the sale proceeds in satisfaction of the judgment registered on,
         
      5. Any balance from the sale proceeds after the deductions to be made from 5 (a) (d) be paid to the defendant,
         
   7. The Plaintiff be at liberty to apply for further directions,
      
   8. Cost of this application to be paid by the second defendant on a full indemnity basis,
      
2. In view of the orders sought for, I find the purpose of this summons is to execute the default judgment entered against the defendant to pay sum of $ 96,900 together with cost of $ 291.25 on the 30th of April 2013.
   
3. The Plaintiff stated that this application in made pursuant to section 104 and 105 of the Land Transfer Act (herein after referred as the Act) and the inherent jurisdiction of the High Court of Fiji, which compelled me to consider whether the Master's court has jurisdiction to hear this application prior to proceeding with my ruling.
   
4. Order 59 of the High Court Rules deals with the jurisdiction of the Master. O 59 r 2 (a) states that the Master could exercise the jurisdiction for chamber applications except the applications listed under abovementioned rule 2 (a). The applications for the execution of judgments are not listed under the abovementioned rule. However, O59 r 2 (c) has limited the jurisdiction of the Master in respect of the Land Transfer Act to deal with only the proceedings relating to caveats. Part XVII of the Land Transfer Act deals with the caveats and section 104 and 105 of the Act do not come under the part XVII. However, section 104 (2) stipulates that the judgments, decrees and orders registered under section 104 (1) shall have the effect of and be deemed to be a caveat under section 106. Accordingly, I find that matters relating to section 104 and 105 of the Act could be considered as matters relating to caveats, wherefore, I am satisfied that the Master has jurisdiction to hear and determine this application.
   

2. BACKGROUND
   

5. The Plaintiff instituted this proceeding by way of a writ of summons seeking following orders inter alia,
   
   1. $96,900 being monies paid by the Plaintiff into a trust account maintained by the Defendant which monies have been misappropriated by the Defendant,
      
   2. Alternatively, the Plaintiff claims the sum of $ 96,900 being monies had received by the Defendant to the use of the Plaintiff,
      
   3. Interest pursuant to the Law Reform (Miscellaneous Provisions) (Death and Interest) Act,
      
   4. Cost of and incidental to this action on a full indemnity basis,
      
6. The Defendant failed to file his notice of acknowledgement and intention to defend upon being served with the writ of summons, wherefore; the Plaintiff entered a default judgment against the Defendant on the 30th of April 2013.
   

100. PLAINTIFF'S SUBMISSIONS
     

7. The Plaintiff submitted that upon being obtained the default judgment against the Defendant, the same was registered against the property contained in Certificate of Title No 14869 being Lot 4 on DP No 3829, which is owned by the Defendant jointly with his wife Daimon Devi Lala in equal shares as tenants in common pursuant to section 104 of the Act. The Plaintiff further submitted that there are two encumbrances on the said title, that they are;
   
   1. Mortgage No 501630 in favour of Home Finance Company Limited; and
   2. Charge No 572582 in favour of Commissioner of Inland Revenue,
      
8. In view of those two encumbrances, the Plaintiff submitted that both the Home Finance Company Limited and the Commissioner of Inland Revenue have been informed about this application.
   
9. The learned counsel of the Plaintiff submitted that the section 104 of the Land Transfer Act provides a procedure for the judgment creditor to obtain an order for sale of the land owned by the judgment debtor consequent upon the registration of said judgment with the Registrar of Title.. The learned counsel specifically pointed out that the wordings of section 104 (3) and 105 (2) could be defined in favor of such an order for sale.
   

4. ANALYSIS
   

10. Having considered the nature of this summons and the submissions of the learned counsel of the plaintiff, I now proceed with my ruling as follows,
    
11. As I stated above, the nature of this application is to execute the default judgment entered against the Defendant on 30th of April 2013.
    
12. The judgments and Orders given in civil litigation could be divided into two groups. Firstly, the judgments that do not require enforcement of it as the judgment itself provide relief sought by the parties. A judgment in divorce proceeding itself dissolves the marriage between the parties, a judgment which declares a right itself provides the relief. These judgments do not require any further steps to be taken in order to satisfy the judgment. The second category is the judgments that require one or more parties to the proceedings to perform any specific act or omission of any specific act. None obedience of such act or omission requires the party who seeks to enforce the judgment to take further steps for the compliance. The default judgment entered against the Defendant in this instance case falls under the second category where the non compliance of payment of money by the defendant, requires the Plaintiff to take further steps pursuant to the judgment for such compliance.
    
13. Order 45 rule 1 of the High Court rules provides the means of enforcement of judgment for payment of money, where it states that;
    

" Subject to the provisions of these rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into court, may be enforced by one or more of the following means, that is to say –

1. Writ of fieri facias,
2. Garnishee Proceedings,

100. A charging Order,

4. The appointment of a receiver,
5. In a case in which rule 4 applies, an order of committal,
6. In such a case, writ of sequestration, "
   

14. The main issue to be determined in this ruling is that whether section 104 of the Land Transfer Act provides a procedure for sale of the land in order to enforce the default judgment entered against the Defendant in this instance case.
    
15. Section 104 (1) of the Land Transfer Act states that
    

"No judgment, decree or order for the payment of money, the sale of land sale rsuancsuance of an exan execution under any such judgment, decree or order issued prior to or after the commencement of this Ac0; shall bind, chor afanyafany estate or interest in land ecubjo t to t to the provisrovisions of this Act unless and unhe Rtgistrarbtrarbeen served with a copy of such judgment, decree or order cder certified by the court and accompanied by a statement signed by any party intereor hirister and solicitor or agent specifying-

>

1. the estate or interest sought to be affected thereby;
2. the name, address and description of the person by whom or on whose behalf the same is lodged; and

100. an address or place within Fiji at which notices and proceedings relating thereto may be served".
     

16. Section 104 (2) of the Act states that
    

"The Registrar, on being served with a copy of a judgment, decree or order under the provisions of subsection (1) shall, after marking upon such copy the time of service, enter the same in the register; and with effect from the time of service thereof upon the Registrar such judgment, decree or order shall, subject to the provisions of subsection (2) of section 105, have the effect of, and be deemed to be, a caveat lodged under the provisions of section 106, subject to any prior registered mortgage or charge forbidding the registration of any person as transferee or proprietor of and of any interest affecting, the estate or interest affected by such judgment, decree or order other than in pursuance of such judgment, decree or order".

17. In view of the section 104 (1) and (2) of the act, a judgment for the payment of money shall not bind, charge or affect any estate or interest in land of the judgment debtor unless and until the registrar of title has been served with the copy of such judgment and Registrar of Title upon being served, registered it against the title of such land in the register.
    
18. Such service to the Registrar of Title and registration of a judgment pursuant to section 104 (1) and (2) shall have the effect of a caveat lodged under section 106 of the Land Transfer Act subject to any prior registered mortgage or charge forbidding the registration of any person as transferee or proprietor of and of any interest affecting. .
    
19. Moreover, section 104 (3) states that,
    

"Upon the estate or interest in respect of which a judgment, decree or order has been registered under the provisions of subsection (2) having been sold pursuant to such judgment, decree or order, the registrar shall on receiving a transfer thereof in the prescribed form (which transfer shall have the same effect as it made by the Proprietor) enter a memorial of such transfer in the register; and on such entry made the purchaser shall become the transferee and be deemed to be the registered proprietor of such estate or interest.

20. Accordingly, I find that the registration of a judgment with the Registrar of Title pursuant to section 104 (1) and (2) of the Act only provides the judgment creditor a security and protective priority against any subsequent registration of estate or interest in the land. Apparently, it secures the interest of the judgment creditor in the land until he executes the sale of the land pursuant to the judgment. In careful reading of the section 104 (1), (2), (3), I do not find that the section 104 provides any procedure to execute the sale of the land in order to enforce the judgment. However, section 104 (2) provides a procedure to protect the interest of the judgment creditor in the land ahead of any subsequent registration of estate or interest in the land until such sale being executed pursuant to the such judgment or decree. The Section 104 (3) deals with procedure for the registration of title of the land with the Registrar of Title following such sale pursuant to the judgment.
    

Conclusion

21. Having considered the reasons set out above, I find that the wording of "pursuant to the judgment" stipulated under section 104 denotes that the execution of the sale of the land could be conducted pursuant to the judgment but not in pursuant of section 104 of the Act. In view of these reasons, I am satisfied that the court has no jurisdiction under section 104 and 105 of the Land Transfer Act to grant an order for sale of this land of the Defendant. I therefore, refuse to grant orders in terms of the Summons and dismissed the same accordingly. I make no order for cost.
    

Dated at Suva this 1st day of November, 2013.

R.D.R. Thushara Rajasinghe
Acting Master of High Court, Suva