Case No.:

AC-REV-6o-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure—Execution sale—Civil court may not sell property of deceased whose estate is being administered by Sharia Court Civil Procedure—Execution sale—Immovable—Requirement to wait 30 days between publication and sale—Civil Justice Ordinance 1929. Ord. XV, r. 28— Material irregularity “—Civil Justice Ordinance 1929, Ord. XV, r. 44

Held: A civil court may not, in executing a decree, attach and sell property of a deceased judgment-debtor whose estate is being administered by the Sharia Court without consent of the Sharia Court.
Obiter dictum: Failure to wait 30 days between publication and sale in execution proceedings provided for in Civil Justice Ordinance 1929. Ord. XV, r. 28. Is a material irregularity within the meaning of Civil Justice Ordinance 1929, Ord. XV, r. 44.

Judgment

(COURT OF APPEAL) *

MHAMED SAEED SABIR AND ANOTHER v. HEIRS OF COSTIS ZIS

AC-REV-6o-1961

Advocates:

Hassan Koheil................for judgment-debtor-applicant

Farouk Ahmed Ibrahim ... for decree-holder-respondent

M. A. Hassib J. April 24, 1961: —This is an application against the order of sale made by the Province Judge, Khartoum High Court, in HC-EX-1-1959 in respect of plot No. 2 in Block 4L, West Khartoum City, the property of deceased Mohamed Abdo.

Decree-holder-respondent Costis Zis (now deceased), obtained a decree in HC-CS-j86- against (I) Mohamed Saeed Sabir and (2) Heirs of Mohamed Abdo, jointly and severally, for payment of a sum of tS.2, rn/ms.

On January 10, 1959, the legal representative of deceased Costis Zis made an execution entitled HC-EX-1-1959 for collection of the debt against the two judgment-debtors upon which the lower court attached and sold the property of debtor Mohamed Saeed Sabir a sent copy decree to Sharia Court which is administering the estate of deceased Mohamed Abdo.

The property of Mohamed Saeed Sabir realized a small sum of money and the greater part of the debt was sought to have been collected from the assets belonging to the second debtor, deceased Mohamed Abdo. Several requests on demand by decree-holders’ advocate were made by the lower court to Sharia Court for payment of the balance of the debt, but went without response, and on March 30, I9 advocate Zarroug, on behalf of the decree-holders, asked the lower court to make an order staying other orders of sale in respect of debtor’s property that might have been issued by other courts in satisfaction of debts other than the debt of decree-holders

and in response the judge of the High Court who was then handling the execution proceedings granted the application and ordered that all decrees against deceased Moharned Abdo should go to Sharia Court, which was administering the estate for payment of the debts, p. of the record of execution.

Thereafter several reminders were sent on application by the advocate of the decree to the Sharia Court expediting action but without avail, and at last, on February 28, 1960, advocate Zarroug on behalf of decree-holders, applied for sale of debtor’s property known as plot No. 2 in Block 4L, West Khartoum City, and produced a Land Registry certificate. The lower court granted the application and proceeded with sale till it was confirmed on February 7, 1961.

The advocate for applicants raised the following contentions:

i. Six months elapsed between the time the execution was allowed and the time when the order of sale was granted; debtors therefore were entitled to be notified in order to show cause why the execution should not proceed.

2. The action taken in publication and executing the sale was an irregularity. It was not in accordance with the requirement of the law, as the law requires 30 days between publication and sale.

3.The property sold belongs to a deceased person and the estate is still under administration by the Sharia Court. The price fetched was too small because of the insufficiency of time of publication.

Advocate Farouk Ahmed Ibrahim, for decree-holders, made the following answers:

1. Sale was made in accordance with the provisions of Civil Justice Ordinance 1929, Ord. XV, rr. 24 and 28, and the court was not satisfied that there was a fraud and the contention of the judgment should not be accepted. He refers to the Indian Code of Civil procedure, Ord. XXI, r. 68, which is identical with our law, and submits that a delay of four days is not a material irregularity which affects the validity of sale and, assuming it was, judgment should have proved substantial injury, which should be proved by direct evidence.

2. The judgment-debtors-applicant are estopped as their advocate appeared in the lower court on February 28, 196o, i.e., before sale, and did not object to it. He said: “I have nothing to say about the sale.”

3. I admit Sharia letter of November 30, 1960, from Kadi disputing the power of the Civil Court to sell deceased’s property and I also admit that deceased died in 1952 and that decree was given to decree-holders on December 14, 1950.

Two important questions arise for consideration in this revision:

(1) Whether there is an irregularity material enough to invalidate the sale of the property, and

(2) Whether the Civil Court, when giving a decree against a deceased person whose estate is being administered in the Sharia Court, has the power to enforce its own judgment by sale of deceased’s property pending administration in the Sharia Court without the consent or order of that Sharia Court.

As to the first question I think the law is provided for by civiI Justice Ordinance, Ord. XV, rr. 24, 28. These two rules read as follows:

Rule 24: “Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive them.”

Rule 28: The court shall exercise its discretion as to the time and place of sale with a view to obtaining the best price: Provided that no sale under this order shall, save as otherwise provided, without the consent in writing of the judgment-debtor, take place until after the expiration of at least 30 days in the case of immovable property, and of at least z days in the case of movable property, calculated from the date on which a copy of the notice has been affixed on the notice board of the court.”

Rule 28 is identical to Indian Code of Civil Procedure, Ord. 21, r. 68. The interpretation given to this rule by Mulla, Code of Civil Procedure 873 (12th ed. 1953) is as follows:

“If a sale is held before the expiration of the period prescribed by this rule it is not void but the case is one of material irregularity within the meaning of rule o and sale will be set aside if the court is satisfied that substantial injury has resulted from the irregularity.”

In this interpretation reference is made to rule 90 of the Indian Civil Procedure Code. This rule is identic2l with the Sudan Civil Justice Ordinance, Ord. XV, r. -. This rule reads:

Where any immovable property has been sold in execution of a decree the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose Interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the court is satisfied that the applicant has sustained injury by reason of such irregularity or fraud.”

The contentions for applicability of Civil Justice Ordinance, Ord. XV, r., are set out in the interpretation of rule 90 of India as follows:

(1) There must be material irregularity.

(2) The material irregularity must be in publishing or conducting the

sale.

(3) The applicant must have sustained substantial injury.

(4) The injury must have been caused by the material irregularity or fraud.

These are the conditions necessary for setting aside sale, and it was found in India that holding a sale of immovable property before the expiration of 30 days from the date on which the proclamation has been affixed on the notice board of the court ordering the sale will be considered material irregularity.

It is clear, therefore, that there was a material irregularity and in order that sale be set aside it is essential that the material irregularity is proved to have caused applicants substantial injury. The substantial injury is a question of fact and, unless it is proved, the application shall not succeed. In the evidence in the case before me I see no support that the applicants suffered any injury. The property sold was assessed at £S4, ooo and at sale it realised £S.4, Ioo, i.e., a price above the assessed value. The appli cants could have attacked valuation before sale and failing that I am of opinion that the irregularity in sale before the prescribed period did cause no substantial damage.

I therefore think that the applicants, on this question, should fail.

As regards the second question, i.e., whether the Civil Court has authority to sell the property of deceased without consent or an order from the Sharia Court administering the estate of the deceased, I am satisfied that sale of property of a deceased person is the concern of Sharia Courts.

Though I admit the difficulty created by Civil Justice Ordinance, s. 192, which empowers the Civil Court to attach and sell the property of deceased in case a decree is against the legal representative, yet I am of opinion that this section is intended to apply when the property remains in the possession of the legal representative and not otherwise.

The administration of Moslems’ estate is the province of the Sharia Court and the law as to payments of debts out of the property of the deceased person is a matter by convenience and practice left to the Sharia Court administering the estate. It is not only by convenience and practice, but it is also provided for by Sudan Mohammedan Law Courts Organization and Procedure Regulations, reg. 219. This regulation reads:

“The court may order payment of debts against an estate either before or after the liquidation of the estate and the issue of the 11am. It may also order the sale of part of the property in settlement of debts either before or after the issue of 11am but it may not order the payment, of a debt wholly or in part before the 11am is issued

unless it be admitted by the heirs or be under a judgment by a proper

authority…

By this provision the payment of debts of deceased persons—if Mohammedans—is left to the convenience of the Sharia Co administering the estate. This is also the practice adopted and followed by all courts whether Civil or Sharia in handling the debts against estates. In this particular case there was an order from the judge of the High Court in the record of execution expressly ordering that the execution of the decree should be left to the Sharia Court. This order should have been respected by the subordinate judges who took part in handling the execution.

Not only for this but also it is necessary for avoiding confusion to the court administering the estate that all debts against the estate should be paid by one authority.

For the above reasons I am of opinion that the order of sale and sale of property be set aside.

No order as to costs.

.4. R. El Nur P.J. April 24, 1961: —l concur.

• Court: M. A. Hassib 1. and A. R. El Nut P.J.