105:
The court held that it had been common cause at the time of appellant's original application that it had been the respondent's intention to sell the land first, subject to lease, and only if the amount of the judgment debt was not realised, free thereof, and that this was in complete accordance with
117:
It was only where the appellant, as lienholder elected to lay claim to part of the proceeds, and the deputy sheriff had to decide whether or not to allow it, that an application for a declaratory order as to the existence of the lien (as prayed for in prayer 1) became necessary.
83:
Judgment had been obtained by the respondent against the owner in
January 1986 on a mortgage bond registered over the farm in 1983, and the property had been attached in March 1986. In May 1987 the owner had entered into a partiarian
109:
Furthermore, the court held that, if the land was sold free of the partiarian lease agreement, the appellant's averred lien would lapse, and the holders of real rights of security in the land would become preferent
121:
The court held that it was clear that prayer (1) had been intended to serve as a precursor to prayer (2). The contents of prayer (2) were, however, contrary to the above- mentioned
88:
with the appellant, in terms of which the latter had obtained occupation of part of the farm, and upon which he had subsequently cultivated the wheat crop.
95:, on the ground that the appellant did not have a lien over the proceeds of the sale in execution. The sale in execution took place in October 1987.
99:
98:
The appellant bought the land himself in order to protect his rights. His appeal to the Full Bench was dismissed, whereupon he appealed to the
169:
159:
31:
146:
Lubbe v
Volkskas Bpk 1992 (3) SA 868 (A); 2 All SA 270 (A), on appeal from Lubbe v Volkskas Bpk 1991 (1) SA 398 (O)
125:
principles and procedures applicable in sales in execution. Accordingly, the appeal had to be dismissed with costs.
134:
35:
164:
27:
76:, had been to sell the land subject to the lease and, if the property did not realise the amount of the
77:
106:
the common law as well as with the established legal procedure in sales in execution.
153:
73:
122:
111:
65:
39:
85:
55:
43:
58:
51:
72:
It was common cause that the respondent's intention, as
42:brought an urgent application before a single
8:
91:The appellant's application was dismissed,
68:to sell the said farm subject to his lien.
114:in respect of the proceeds of the sale.
7:
61:on a certain part of the farm T; and
50:declaring that he had established a
34:270 (A) is an important case in the
14:
46:in which he applied for an order
1:
186:
135:South African law of lease
80:, then free of the lease.
36:South African law of lease
170:1992 in South African law
16:South African legal case
38:. In October 1987, the
160:South African case law
23:Lubbe v Volkskas Bpk
100:Appellate Division
177:
165:1992 in case law
64:instructing the
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143:
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86:lease agreement
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66:deputy sheriff
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78:judgment debt
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71:
30:868 (A); 2
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154:Categories
141:References
123:common-law
93:inter alia
112:creditors
74:mortgagee
54:over the
40:appellant
26:1992 (3)
129:See also
32:All SA
56:wheat
44:judge
59:crop
52:lien
156::
102:.
28:SA
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