(COURT OF APPEAL)

ALI EL BEDAWI El MUBARAK v. ABDEL RAHMAN EL KHAZEIN

AC-REV-525-1968

Principles

  Civil Procedure—Judgment—Civil Justice Ordinance, s. 92—Limitation time runs from the date of pronouncement in open court

According to Civil Justice Ordinance, s. 92, the time of limitation runs from the date of pronouncement of judgment in open court after service of notice on the parties.

Advocates: Abdel Halim El Tahir for the applicant

Taha Ibrahim for the respondent

Judgment

Dafalla El Radi Siddig J. February 25, 1970:—Applicant 5 challenging a summary dismissal of his revision by His Honour the Province Judge at Omdurman. The facts are simple.

The District Judge wrote his opinion and passed an order for subpoenaing the parties for declaring his opinion for June 15 1968. No action had been taken in this respect. A decree dated May 30, 1968 had been issued. It is stated on the record that applicant’s counsel perused the record on June 19, 1968. The learned Province Judge counted the time bar as from the above date. Hence this revision.

It is contended for applicant that there is no judgment in the sense of the Civil Justice Ordinance, s. 92. It is further asserted for applicant that his counsel did not peruse the judgment and that until the opinion is: declared it cannot be a judgment in the sense of the law. In reply it prayed for respondent that the Civil Justice Ordinance, S. 215, be invoked to safeguard the interests of justice and not to let procedural technicalities override the dictates of justice. It is further alleged that the decree is correct and that the execution is correct according to the Civil Justice Ordinance, S. 191 and further, according to the Civil Justice Ordinance, s. 4 (4), there is no legal requirement that a decree should be according to the Civil Justice Ordinance, s. 94.

To put our finger on the legal issue, the controversy raises the question as to whether a judgment should be delivered in open court or should it suffice merely to bring the matter home to the parties’ knowledge somehow?

In my view the arguments by the learned counsel for respondent based on both Civil Justice Ordinance, ss. 4 (4) and 191, are irrelevant to the real issue before us. Both a decree and execution are events which follow a judgment in the sense of the law. The real issue involves the Civil Justice Ordinance, s. 92 which reads:

“The court after the suit has been heard shall either immediately or at some subsequent time of which due notice shall be given pronounce judgment."

The mandatory tone of the section is clear and hence it allows no room for either invoking Civil Justice Ordinance, s. 215, which is wrongly quoted for Civil Justice Ordinance, s. 226 I presume, nor for the view of the realist school that any way the ultimate purpose is scienter. Thus, the inherent powers of this court can only be exercised to supplement, but not to substitute clear enactments.

Now two different aspects should be made clear. First, there is the validity of the judgment, as such, on its merits; while there is also the question of limitation. In so far as the former is concerned the declaration of a judgment in open court after service of notice on the parties may not ultimately affect the decree, while for the latter purpose time begins to run only after pronouncement is made. Such is the view which had been taken by Indian Authorities in Mandia and Others (I935) A.I.R. Lahore 1895. This same view has been expressed in Khark Singh v. Lachaam Singh (1925) A.I.R. Allahabad 293/294.

Thus, in my view, until a judge pronounces his opinion according to the Civil Justice Ordinance, s. 92, it is just a memorandum which he can change; and it only becomes a judgment in sense of the law if Civil Justice Ordinance, s. 92 is followed.

Ergo, it is my decision that the papers should be remitted back to the lower court for a proper pronouncement and that limitation time only runs thereafter.

No order as to costs.

Ramadan Au Mohamed J. February 25, 1970 : —I concur.