(COURT OF APPEAL) *

ABDEL GADIR HAMAD AND OTHERS v. KHIDIR MOHAMED AHMED EISSA

AC-REV-392-1960

 Principles

·  Civil Procedure—Reopening of suit dismissed for lack of prosecution—Time within which application can be made to set aside dismissal order—Analogy of periods of limitation—Civil Justice Ordinance 1929, s. 217 (2)

Where an order is made dismissing a suit for lack of prosecution under Civil Justice Ordinance 1929, S. 227. an application for reopening can be made within the period of limitation governing the cause of action.

Judgment

Advocate: Abdalla Nagib, for Yacoub Mohamed ………….for applicant

* Court: M. A. Hassib, Acting C.J., and B. Awadalia J.

Babiker Awadalla J. February 20, 1961 :— I am of opinion that the order of the Honourable Judge of the High Court reversing that of the learned District Judge, cannot stand. As I see it, the Honourable Judge of the High Court based his decision on the ground that the application to set aside the dismissal order was made too late in that it was made after the lapse of the period of one month normally allowed in practice. I regret that I am unaware of any decision of this court fixing the time for applications to reopen under Civil Justice Ordinance, s. 217. My Honourable colleague on the Bench has drawn my attention to the lectures by Sir Charles Cumings, the former Legal Secretary, the relevant part of which says that “presumably after five years the order of dismissal cannot be quashed.” In India the periods for reopening court orders are fixed by the Limitation Act, and no provision exists similar to our Civil Justice Ordinance, s. 217. Cumings J. seems to have chosen the figure five by analogy to execution proceedings, which cannot be reopened after five years from the date of the last application. (Cf. Prescription and Limitation Ordinance 1928, Schedule, item 15.) I believe if analogy is to be made, it should be made to the appropriate period of limitation governing the cause of action. Thus, an order under section 257 disposing of a claim to wages cannot be reopened after the lapse of one year, one disposing of a claim in respect of land cannot be entertained after the lapse of ten years, etc.

In the present case, the order of the Honourable Judge of the High Court reversing that of the learned District Judge on the sole ground that the application was Out of time cannot stand. This application is therefore allowed with costs, and the order of the Honourable Judge of the High Court is hereby reversed and that of the District Judge, Kosti, is restored.

M. A. Hassib, Acting C.J. February 20, 1961 :—l concur.