(HIGH COURT)

LEON YACOUB NISHAN v. MUSTAFA KHALIL AHMED HUSSEIN

(HC-CS-166-1954)

Principles

·  Mortgage—The Natives Disposition of Lands Restriction Ordinance, 1918-Whether court must seek Governor’s consent before ordering sale.

 
  Where the date for redemption passes aM the mortgagor does not redeem the property but avoids all process of court, the court may order the sale of such property, though the Governor withdraws his consent to such sale under the Natives Disposition of Lands Restriction Ordinance, 1918. as the said Ordinance does not require or make it incumbent upon a court to seek the Governor’s consent in satisfaction of judgments and decrees of courts, since the object of the said Ordinance was solely to prevent natives of the Sudan from disposing of their land to foreigners or from selling it at a very low price.

Judgment

Order

Advocate: Roushdi Boutros…. for the plaintiff.

April 23, 1956. Michel Cotran Acting J.: —These proceedings for sale of the mortgaged property or foreclosure have been going on for the last twenty-eight months without any fruitful result to the mortgagee. The mortgagor persistently refused to pay the debt, which fell due on June I1. 1953. The mortgagor seems to have been avoiding all process of court The incident of April 15, 1956, is a glaring example. He was duly summoned to appear before me on that date (the hearing having been fixed on his own application), and despite a reminder by telephone, he declined to attend, although the court waited until 1p.m. I find on the record that at one time he deliberately refused to receive a decree, which had to be served upon him by an officer of the court in connection with these proceedings. The mortgaged property was finally advertised for sale, after the Commissioner’s consent had been obtained. February 15,1956, was fixed for the sale, but as the highest bid ($E.3, 000) was less than the estimated price ($E.4, 300), the sale was postponed to March 26, 1956, and another notice was published. After that postponement, the mortgagor started a new attempt to protract the sale proceedings. He applied to the Commissioner, Khartoum, who saw fit to withdraw his consent to the sale. The mortgagor made an offer to the Commissioner which was duly communicated to this court, proposing to settle the whole debt in monthly instalments of £E.3o each. The amounts due to date are as follows:

£E.1, 183 .96om/ms                Amount decreed

LE. 150.750m/ms                   Interest due up to April 23, 1956

LE. 31.000m/ms                     Cost of notices in newspapers

______________

LE. I, 365.710m/ms

The effect of the offer is to allow the mortgagor to pay the debt over a period of about four years from today, not counting the three years that had already elapsed since the maturity of the debt. The offer is far from reasonable, and I do not accept it.

As to the Commissioner’s consent, I am of opinion that it is a mere formality, and that in the absence of such consent, the court should not be deprived of its power to order the sale. In my view, the Natives Disposition of Lands Restriction Ordinance, 1918, while prohibiting natives of the Sudan from disposing of land without the Governor’s consent, does not require or make it incumbent upon a court to seek the Governor’s consent for the sale of land belonging to natives of the Sudan in satisfaction of judgments and decrees of courts. The practice hitherto followed by some courts in obtaining such consent is, I think, wrong. Not only will the ends of justice be defeated, but trade as a whole and all commercial dealings will suffer, if a mortgagee, after having obtained an order for sale or foreclosure, is prevented from executing his decree because the Commissioner is withholding his consent. I understand that the object of the Natives Disposition of Lands Restriction Ordinance, 1918, was solely to prevent natives of the Sudan from disposing of their land to foreigners or from selling it at a very low price.

It must be remembered that the property in question is leasehold and there is a first charge on it in favour of the Sudan Government for LE. 1,134. Before the present mortgage was registered, the Governor must have approved the transaction on behalf of the Government as lessors, of the land, and he must have also given his consent under the Natives Disposition of Lands Restriction Ordinance. I am, therefore, surprised how, when the time comes for the mortgagee to satisfy his judgment, the Commissioner declines to grant his consent. I direct that the sale should proceed without such consent. To hold otherwise would be grossly unfair.

I shall not deal with the new offer put up by the mortgagor. He has proposed to pay £E.1,000 vithin thirty days, and the balance (LE.365.710) in monthly instalments of £E.5 each. This means that the mortgagee has to wait for seventy-three further months to redeem his money. The mortgagee has refused this offer. He states that not only is it unreasonable, but the mortgagor will never honour it and it was put forward merely to gain more time. Judging from the mortgagor’s conduct, I am inclined to agree.

Having given careful consideration to the matter. I make the following order, which I think just in all the circumstances:

(1) That the sale shall proceed, and I fix May 31, 1956, at 11 a.m. for the sale to take place. The necessary notice should be, published immediately in both El Ay-am and RaiEl Am inadition to the other usual notices to be affixed in various places. There will be no reserve price this time, as this is the third advertisement for sale. The property will be knocked down to the highest bidder.

(2) That if the mortgagor, on or before May 31, I956 will pay

£E.1,000, and undertakes to settle the balance in monthly instalments of £E.2o each commencing on June 30, 1956, the sale will be stayed. The condition of payment of the balance will be that, if any instalment is not paid on maturity, the whole remaining amount shall become due and payable at once.

(3) That the property shall remain mortgaged as security for the balance, unless the mortgagor offers a guarantee acceptable to the mortgagee and approved by the court.

(4) That the mortgagee shall pay the cost of the new notices for the sale fixed on May 31, 1956, since, in the event of the mortgagor complying with paragraph (2) of the operative part of this order, an extra unnecessary expense would have been caused to him                                                                              (Order accordingly)