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Devi v Fiji Public Trustee Corporation Ltd [2017] FJHC 896; HBC27.2015 (23 November 2017)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 27 of 2015

Appearances : Ms Naidu J. for the applicant/plaintiff

: Non-appearance for the respondents/defendants

Date of Hearing : 23 November 2017

Date of Ruling : 23 November 2017

R U L I N G

[01] Before me, there is an application filed by the plaintiff seeking certain orders for the purpose of execution of the consent judgment given on 14 February 2017, where it was ordered that the first defendant shall execute all relevant documents to enforce the judgment within two weeks from the date of the service of the judgment. The judgment requires the certain act to be done by the first defendant. The application is filed pursuant to s.168 of the Land Transfer Act (the LTA), supported by an affidavit of Punna Devi, the Sole Executrix and Trustee of the Estate of late Bal Krishna.

[02] The applicant has cited an incorrect section (s.168, LTA) in the application. As they seek orders for the purpose of execution of the judgment, they should have made this application under O.45, r (5) which reads:

“Judgment, etc. requiring act to be done: order fixing time for doing it

O.45, r (5)

5.-(1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 4 have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified.

(2) Where, notwithstanding Order 42 rule 3(1), or by reason of Order 42 rule 3(2), a judgment or order requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.

(3) An application for an order under this rule must be made by summons and the summons must, notwithstanding anything in Order 65, rule 9, be served on the person required to do the act in question”

[03] Mrs Naidu, counsel for the applicant submits that the applicant is also seeking any other orders the court may deem fit that the court may treat this application as the one filed under O.45, r.5 of the High Court Rules (the HCR).

[04] I accept that submission and treat this application as the one filed pursuant to O.45, r.5 of the HCR.

[05] I now consider the application, affidavit and the submissions advanced by counsel for the applicant.

[06] The judgment does specify the act is to be done by the first defendant within 14 days of the date of the service of the judgment. The applicant states that the first defendant has neglected to execute the transfer documents despite the numerous requests by the applicant.

[07] The court is empowered, under O.45, r.5, to fix another time, being such time after service of that order for the act stated in the judgment is to be done by the defendant. I now, acting under O. 45, r.5, fix another time period within which the act in the judgment to be done by the 1^st defendant.

[08] I accordingly, order the 1^st defendant to execute the transfer and sign all necessary documents to enforce the judgment of the court given in favour of the plaintiff on 14 February 2017, within 30 days of the service of this order.

The Result

1. The first defendant is ordered to execute the transfer and sign all necessary documents to enforce the judgment of the court given in favour of the plaintiff on 14 February 2017, within 30 days of the service of this order.
   
2. Costs shall be in the course.
   

DATED THIS 23^RD DAY OF NOVEMBER 2017 AT LAUTOKA.

.......................................

M.H. Mohamed Ajmeer

JUDGE

Solicitors :

For the applicant/plaintiff: M/s Jyoti Legal, Barristers & Solicitors