(COURT OF APPEAL)*

EL SAYED EL AMIN AHMED EL SHOTALI Vs. OSMAN MOKHTAR & OTHERS

 (AC/REV/95/1957)

Revision

Principles

·  Land law — pre-emption— mortgage of land subject to pre-emption followed by sale decree of specific performance of sale— whether such decree a sale of land by order of the Court — Pre-emption Ordinance, 1928, sec. 7.

A decree of specific performance is not a sale of land by order of the court within the meaning of sec. 7 (a) of the Pre-Emption Ordinance, 1928, such as to exclude the right of pre-emption.
Judgment

The applicant claimed to have been a co-owner of a plot of land which sometime prior to 1951 was mortaged to the respondents. After the mortgage the respondents bought the share of the other owner, but the applicant heard of the sale and managed somehow to get the vendor to sell to him and register him as the owner instead of the respondents. The respondents then brought an action for specific performance against the vendor in which the applicant was presumably made a defendant. This decree was granted, whereupon the applicant commenced pre-emption proceedings against the respondents. The District Judge upheld the claim, but on revision the High Court Judge held that the decree of specific performance was a sale of the land by order of the Court within sec. 7 of the Pre-Emption Ordinance, 1928, and also that the defendant was guilty of laches.

Advocates:                   The applicant in person.

The respondents in person.

B. Awadalla, ,7. This is an application for revision against the decision of His Honour the Province Judge, Northern Circuit, dated

(*) Court: M.A. Abu Rannat, C.J. and B. Awadalla, J.

(i) Sec. 7 of the Pre-emption Ordinance,1928 states: No right of pre.emption arises in the cases following;

a) Where a sale of property takes place by public auction at the instance of any administrative authority or by order of the Court.

21st January, 1957, setting aside a decree of the learned District Judge, Shendi, dated 17th May, 1956, and declaring that the applicant (the plaintiff in the original suit) had established a right of pre-emption against the respondents (the defendants in the suit) in respect of five Uds tulati in share fifteen gerf seventy el Bawalid Shendi. Before this application was adjourned into this Court of Appeal the applicant died and his heirs were allowed under sec. 102 of the Civil Justice Ordinance to appear in the proceedings. For the sake of brevity the heirs of the applicant will hereafter be referred to as “the applicant”.

We agree with the remarks of His Honour the Province Judge that this is not an easy case. The confusion apparent on the record of the District Court arose from the fact that the transaction itself was not a straight forward one. It appears that sometime prior to 1951 the respondents became mortgagees of the land in dispute, and then, in that year, acquired it by purchase. Sometime later, and before the respondents had the land registered in their names, the applicant heard of the sale and managed somehow to get the vendor to sell to him, and had the land registered in his name. Had he at that time proceeded straight away under the Pre-Emption Ordinance this case would never have seen the light of day, and if it had done so, the Courts would have found the issues much easier. This the applicant did not do, and the respondents were compelled to sue the vendor for specific performance. The relative proceedings are not before us, but we assume that the applicant, who had the land registered in his name, was joined as a defendant. It appears that a decree in favour of the respondents for specific performance was issued on 2 January 1954 on which date these proceedings for pre-emption were started.

We notice that the certificate of search produced by the applicant in the Court is most unhelpful, as it speaks only of the five udsin dispute, with a note that the applicant owns shares 3 and i6 in the same gerf. Certificates of search in pre-emption suits must show the whole distribution in the unity of irrigation concerned, with a complete history of the transfers in each share, and we hope that His Honour the Province Judge will draw the attention of the Land Registries in his circuit to this point.

On i8th. June 1954 the learned District Judge, relying on information in the suit for specific performance, dismissed the petition on the ground that, as the applicant had failed to set up his claim for pre emption in the suit for specific performance, the issue was res judicata.

No application for revision was made against this order, but the applicant appeared again before the Court on 12th. February I956 to pursue his claim for pre-emption. The learned District Judge, wrongly ignoring his previous order of dismissal, made an order for the issue of pre-emption notices. On 4 April 1956 action was allowed and the hearing fixed for i May 1956. On that date the vendor did not appear because he was not served with the summons, but the learned District Judge proceeded with the case, and although the respondents resisted the claim, no issues were framed, and the Court proceeded to give judgment in favourof the applicant. To dispose of the case finally in the absence of any evidence of service of summons on the vendor in a pre-emption suit is not only contrary to procedure but is also against elementary rules of justice. If a vendor is not heard in a case like this, and the issue is tried merely on allegations by the claimant and the purchasers, many people might find themselves fraudulently deprived of property which they have had no intention of selling. It may be said that the Court had knowledge of the sale from the previous suit for specific performance, in which the vendor appeared, but this is the last thing which would be permissible.

The respondents petitioned the Province Judge who set aside the decree (a) on the ground that the sale was made by order of the Court under sec. 7 (a) of the Pre-Emption Ordinance, and (b) on the ground that the applicant had been guilty of laches. As regards the first ground we do not find that there has been a sale by order of the Court at all. A decree for specific performance is not a sale but is simply an order in personam calling on the defendant to abide by a bargain which he had previously concluded. It is essentia1ly a remedy ordered and not a dealing or transaction concluded by the Court. As regards the second ground, here again His Honour the Province Judge proceeded on the assumption that pre-emption is sought against the order of the Court, and that as the applicant had not pursued that application with diligence, he must fail. But even on this assumption, what could the applicant do after his petition was dismissed without cause ? In our view the fact that he managed to induce the Court to change its mind after more than 18 months is evidence of persistence rather than laches.

We are, therefore, of opinion that the issue as to whether the applicant could pre-empt on the sale effected by Mohammed elBeshir to the respondents in 1951 was never correctly tried. This raises issues of fact which the Court has to investigate very carefully before it can arrive

at a just decision. It is for this reason that we now return the case for retrial. It is for the Court to decide whether, in the circumstances of this case, it would be just to discard the period during which the land was registered in the applicant’s name, and to proceed on the assumption that such registration had never taken place.

No order is made as to Costs.

M.A. Abu Rannat C.J. — I concur.

Appeal Allowed.