(COURT OF APPEAL)

SAAD IBRAHIM v. FATHI IBRAHIM

AC-REV-128-1956

Principles

·  Civil Procedure—Judgment debt—Satisfaction—Agreement between parties supplants decree

An agreement in court between judgment-debtor and decree-holder for the satisfaction of the debt replaces the decree, and further orders of the court inconsistent with the agreement are invalid.

Judgment

M. 1. El Nur J. October 22, 1956 :—On September 5 1955. applicant obtained a decree in El Obeid CS-218-1955  against respondent (his brother) for £S.536.280m/ms  On November 27, 1955   applicant applied to Province Judge, Kordofan, for the execution of that decree. The execution was allowed and respondent’s movables were attached on December 5, 1955. On January 22, 1956, both applicant and respondent appeared before the Province Judge and said they had come to an agreement. whereby respondent paid to applicant £S.100 in cash and delivered to him nine post-dated cheques, for a total sum of £S450 in full settlement of the balance of the execution debt. Consequently, the Province Judge made the following orders:

(1)   Stay sale

(3) Await further application.

On July 28, 1956, applicant appeared before the Province Judge and asked that the sale of respondent’s movables under attachment should go through, since respondent had failed to pay £S.200 out of the £S.450 for which he delivered the nine post-dated cheques on January 22, 1956. On August 24, 1956, both applicant and respondent appeared before the court, and the latter, while admitting the balance of £S.200, offered to applicant  in court  £S.50 and promised to pay the remaining  S.I50 at £S.50 monthly. Applicant refused to take the £S.50 offered and insisted that the sale should go through. The court made the  orders:

(1) Stay. sale.

(2) Debtor to deposit the £S.50 into court.

)3) Debtor warned to pay the instalments regularly as from August 25, 1956

This is an application for the revision of the latter order by the Province Judge staylng sale of respondent’s movables.

‘Court: M. I. El Nur J. and Abmed Bedri I.

‘It is clear from the above that this execution ought to have been treated as satisfied since january 22, 1956  when applicant accepted  in fu1l settlement of the execution  debts, which amounted to £S.563.160m/ms (including excution  fees), the sum of £S.100 in cash  and nine post-dated cheques for £S.50 each. That agreement immediately extinguished  an took the place of the decree, and applicant had since the acceptance of the nine post dated cheques a separate cause of action for the recovery of their value. It is therefore clear that all the orders made in this execution since January 22, I956  when the decree was extinguished and the agreement reached between  the parties, were illegal.

However  according to the record, respondent had already deposed  into court £S.50 on August 14, 1956, and if he carried out the order of the court, faulty as it was, he must have paid another £S.50 on  August 25  1956 £S.50 on September 25, 1956, and a final £S.50 on October 25, 1956. We therefore make the following orders:

(1) This execution should be deemed as satisfied since January22    1956.

(2) The £S.50 deposited into court on August 14, 1956, and any other instalments paid by him consequent on the order of the court on that date, should be paid to applicant.

(3) If respondent did not pay the remaining £S.150 or any part thereof as ordered by the court on August 14. 1956, applicant can raise a separate suit for their recovery under the post-dated cheques delivered to him on January 22, 1956.

Ahmed Bedri J. October 22, 1956:—I concur.