(PROVINCE COURT)

ABDULLA TAHA EL BULUK V. HASSAN ABDEL RAHMAN

PC-REV-13-1960 (El Obeid(

 Principles

·  Mortgage—Accounting from mortgagee—Public policy—Mortgagor’s right under Civil Justice Ordinance 1929, s. 523. cannot be waived

A mortgagor’s right to an accounting from the mortgage under Civil Justice Ordinance 1929. S. 123, is a matter of public policy and cannot be waived by contract.

Judgment

M. Y. Mudawi P.1.—This is an application for revision made by defendant-applicant Abdulla Taha El Buluk against a decree issued by District Judge, El Obeid, in favour of plaintiff-respondent Hassan Abdel Rahman Meccawi. The decree orders defendant to pay to plaintiff the amount of £S.208.280m/ms on March 8, 1960; otherwise the mortgaged property, House No. 2, D. 6 N., should be sold in satisfaction of the amount decreed and the balance to be handed over to the mortgagor.

On December 4, 1957, defendant Abdulla Taha El Buluk mortgaged his property, known as House No. 2, D. 6 N., at El Obeid, to plaintiff Hassan Abdel Rahman Meccawi against a debt of £S.200.000m/ms. The mortgagee entered into possession by virtue of the mortgage deed, which entitled him to possession of the mortgaged property and to enjoyment of rents and profits thereof.

On June 27. 1959, notice was served on the mortgagor to settle the debt and release his property, and as no response was forthcoming, legal proceedings were instituted on January 7, 1960. On February  8, 1960, the District Court issued the decree summarised above. On February 9, 1960, this revision was brought before the Province Court. On February 22, 1960, and March 1, 1960, advocates of both parties were heard by me.

Applicant’s advocate challenged the correctness of the decree on the ground, “that the court below failed to follow Civil justice Ordinance 1929, S. 123, which provides for accounts to be taken between mortgagees and mortgagors.” Advocate for respondent replied, “that the applicant is estopped from invoking Civil Justice Ordinance 1929, S. 123, as he waived by contract his rights under the said section, and that anyway the mortgagor did not draw any profits from the mortgaged property.”

Undoubtedly this is a clear case of mortgage in possession. and as such it should be subject to the provisions of Civil Justice Ordinance 1929, S. 123, that is, the court before making its decree should take accounts between the mortgagor and mortgagee. As for the argument of advocate for respondent that the provisions of section 123 are waived and should therefore not apply, I am afraid it does not inpress me as an accurate exposition of the law. It clearly cuts across the maxim, privatorum conventio Jun publicio non derogat, i.e., when public policy requires the observance of a provision, it cannot be waived by an individual. Generally speaking, when the legislature confers a private right or benefit on an individual, then that individual can waive the right or benefit conferred on him if he so desires. But if the right does not concern the individual alone and is intended to further some public policy aimed at protecting the community against a certain evil, then no individual can waive the right so conferred.

As far as section 123 is concerned, I am of opinion that it is an enactment intended to protect the public against harsh and unconscionable dealings by mortgagees in possession, and if waiver is allowed the object of the enactment will surely be defeated

In view of this, I order that the decree be set aside and the case be sent back for retrial with a view to following the provision of Civil Justice Ordinance 1929, S. 123.