Prakash v Lala [2016] FJHC 944; Civil Action 305.2012 (18 October 2016)

THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 305/2012

BETWEEN:

Parveen Prakash

Appellant

Gyaneshwar Prasad Lala

Respondent

COUNSEL: Mr V.Singh with Ms L.Lagilevu for the plaintiff

The defendant is absent and unrepresented

Date of hearing: 7^th October,,2016

Date of Judgment: 18^th October,2016

JUDGMENT

1. This is an appeal from an interlocutory decision of the Master. On 23^rd August, 2016, I granted the appellant leave to appeal the decision.
2. The appellant appeals on the following grounds:
   1. The Learned Master erred in holding that Sections 104(1) (2)and (3) of the Land Transfer Act does not provide any procedure to execute the sale of the sale in order to enforce the judgment.
   2. The Learned Master erred in holding that the wording of “pursuant to the judgment” stipulated under Section 104 of the Land Transfer Act, Cap 131 denotes that the execution of the sale of the land could be conducted pursuant to the judgment but not pursuant to Section 104 of the Act.
   100. The Learned Master erred in holding that an application for sale of land cannot be made under Section 104 of the Land Transfer Act, Cap 131.
   4. In the circumstance, the Learned Master erred in dismissing the Summons seeking a sale of the land pursuant to the registered judgment.
      
   5. The Learned Master erred in failing to exercise his inherent jurisdiction and all discretion in relation to the application by the Appellant.
      

The determination

3. This appeal is centrally concerned with the finding of the Master that section 104 1), (2) and (3) of the Land Transfer Act does not provide any procedure to execute the sale of land, once a judgment is registered on its title.
   
4. The appellant had obtained a default judgment against the defendant for a sum of $ 96,900.00. The Registrar of Titles had entered the judgment against the title.
   
5. The appellant filed a summons before the Master and moved for an order that :
   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 and registered against the said Certificate of Title.
   2. A call for tender to 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 to 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 the sale.

2. Daiman Devi Lala be paid half of the balance of the sale proceeds after the deductions have been made 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 the amount due to it on the Charge it has lodged on the property and Daiman Devi Lala

4. The Plaintiff be paid the balance of the sale proceeds in satisfaction of the judgment registered.
5. Any balance from the sale proceeds after the deductions to be made from (5) (a)-(d) be paid to the Defendant.

6. The Master, having analysed section 104 of the Land Transfer Act, in his Ruling stated that that the registration of a judgment with the Registrar of Title under section 104 (1) and (2) 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”.
7. The Master concluded:

In careful reading of the section 104(1),(2)(3), does not provide any procedure to execute the sale of land, in order to enforce the judgment

I am satisfied that the court has no jurisdiction under Section 104 and 105 of the Land Transfer to grant an order for sale of this land of the Defendant.

8. I have examined section 104 of the Land Transfer Act.
9. Sub-section (1) of section 104 provides that a judgment for the payment of money shall not bind, charge or affect any interest in land, until a copy of the judgment is served on the Registrar.
10. Sub-section (2) requires the Registrar of Titles to enter the judgment in the register. The judgment is deemed to be a caveat lodged under section 106.
11. The succeeding sub-section (3) provides that upon the “estate or interest in respect of which judgment has been registered ..having been sold” (emphasis added) , the Registrar on receipt of the transfer, is required to enter a memorial of the transfer, when the property is sold.
12. Clearly, the sale is the next step, as provided in sub- section(3).
13. It follows and I hold that the Court is required to give effect to the section by ordering the sale and directing the manner how it is to be sold.
14. In my view, the Master erred in holding that an application for sale of land cannot be made under section 104, dismissing the summons of the appellant and failing to exercise his discretion.
15. The appellant’s appeal succeeds.
16. Orders
    • (a) The appeal of the appellant is allowed.
    • (b) I make no order as to costs.
      

A.L.B. Brito-Mutunayagam

JUDGE

18^th October, 2016