Bahir Dar City Service Office -v.- Bahir Dar Textile Factory et al Cassation File No. 54567
Federal Supreme Court Cassation File No. 54567 (February 17, 2012)
Holding of the Court:
Where property under court injunction to restrain sale is found to have been sold, the judgment creditor shall have recourse, and the failure to respect the injunction (igid) entails liability.
Civil Code, Articles 2028, 2035, 2126
Cassation File No. 54567
Yekatit 10, 2003 E.C. (17 February 2011)
Federal Supreme Court Cassation Division
Justices:Tegene Getaneh, Dagne Melaku, Teshager G/Selassie,
Almaw Wolie, Ali Mohammed
Petitioner: Bahir Dar City Service Office
Respondents: 1. Bahir Dar Textile Factory
- Roman Gebru
- Maru Alamirew
The case relates to the remedy available to a judgment creditor where property under suspension of sale (igid) is found to have been sold. The case started based on the statement of claim submitted to the lower court by the current first respondent against the current petitioner. The current second and third respondents were made parties to the suit upon the request of the present petitioner after it received the statement of claim.
The initial plaintiff (i.e. the present first respondent) filed a suit which states that Berhanu T. was employed as a cashier from 1988 EC to 1994 EC and he has misappropriated Birr 28,794.70 (twenty eight thousand seven hundred ninety four birr and seventy cents). The statement of claim further states that Western Gojam Administration Zone High Court had held Berhanu T. liable for the amount stated in the suit plus interest and had granted a temporary injunction to restrain sale and exchange of Berhanu’s house as security for the judgment creditor. The suit indicates that Bahir Dar City
Service (Municipality) Office has violated the Court’s injunction of sale and requested that it should be liable to pay the amount that was secured by the injunction.
The present petitioner admits the injunction that was ordered by the court, and argued that it is not liable for the mistake stated in the suit because it occurred due to the fault of two employees whom it requested to be joined in the suit as respondents. The second and third respondents who were included in the suit argued against the liability raised in the suit.
The lower court decided that the present petitioner is liable to pay the amount that was secured by the judgment and found that the second and third respondents are not liable. The petitioner’s appeal to the Amhara Region Supreme Court and its cassation petition to the Region’s Supreme Court Cassation Bench were not accepted.
The petitioner has further lodged a petition to the Federal Supreme Court Cassation Division. The core theme of the petition is that the second and third respondents, and not the petitioner should have been held liable. It further complained against the decisions of the lower court regarding the amount that it was made liable to pay, by stating that the liability should have been only for the amount obtained from the sale of the house and not the entire debt for which Birhanu was made liable for misappropriation, i.e Birr 28,794.70.
The judgment debtor has sold the house that had secured his debt and which was under injunction. The judgment creditor had submitted the injunction order for the suspension of sale to the present petitioner, in spite of which the latter failed to suspend the sale. The petitioner does not deny the receipt of the injunction, but rather argues that the liability solely goes to the second and third respondents. The decision of the lower courts found the petitioner liable on the ground that it has allowed the sale of the house in violation of the injunction, and that it has not proved the fault of the second and third respondents.
By virtue of the content and spirit of Article 80(3)(a) of the FDRE Constitution and Article 10 of Proclamation No. 25/1996, this cassation bench does not address issues of fact, and the decisions of the lower courts regarding the petitioner’s failure to prove the fault of the second and third respondents cannot be re-examined by this bench. In light of its failure to prove the fault of the second and third respondents, there is no ground for the petitioner not to shoulder liability. This is because the violation of the injunction to restrain sale constitutes infringement of clearly stipulated rules and procedures which entail liability in accordance with Articles 2028, 2035 and 2126 of the Civil Code. The decision of the lower court has not thus made error of law in rendering the petitioner liable.
The other argument submitted by the petitioner relates to the amount of liability, and the petitioner contends that the liability should extend only to the amount received as proceeds of the sale of the house and not the whole amount for which the judgment debtor was liable. However, as the sale was not sold by auction, it cannot be ascertained whether the house was sold at its real market value. Thus the petitioner has no valid ground to contest the amount of liability. We have rendered the following decision because there is no valid ground which shows fundamental error of law.
The decision rendered in this case is confirmed in accordance with Article 348(1) of the Civil Procedure Code.
Signature of five justices