(COURT OF APPEAL)

SOCIETE POUR LA VENTE DES PRODUITS EGYPTIENS vs. FADL EL SEED FADL

(AC/REV/33/1957)

Revision.

Principles

·  Practice and procedure — default decree — power of Court to set aside decree.

The Court has an inherent power to restore a Suit for trial, after a default decree has been passed, even if no sufficient cause is shown within the meaning of sec. 69 of the Civil Justice Ordinance.1

Judgment

The facts appear from the judgment of M.I. El Nur J.

Advocates: Hanna George Bushara………… for the applicant.

Ahmed Guma’a ……………………… for the respondent.

M.I El Nur J. This is an application for revision of the order of the Judge of the High Court, Khartoum (Hassib J.) in HC/Rev/34/1957. dated 4th February The learned Judge of the High Court sum merrily dismissed the application for revision of the District Judge’s order dated 23rd. January 1957, whereby he refused to set aside the default decree passed by him on 2nd.January 1957 in CS/759/1956 against the applicant. The grounds for refusal were that the applicant did not show reasonable cause for his failure to attend on the date fixed for hearing. The learned judge of the High Court in his reasoned decision said that the case had been going on for almost a complete year, and that a default decree had previously been passed against the applicant, and had been set aside on his application. This was thus the second time that a default decree had been issued against him.

 (*) Court : M..A. Abu Rannat C.J. and MA. El Nur J.

(I) Sec. 69, so far as relevant, is as follows

Where a decree is passed against a defendant who has not appeared he may apply... for an order to set it aside, and if h satisfies the Court that the summons was not duly

served or that he was prevented by any sufficient cause from appearing when the Suit Was called on for hearing the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise, as it thinks fit, and shall appoint a day for the hearing of the suit.

The learned judge of the High Court was satisfied that the applicant had not shown a sufficient cause for his failure to attend.

In my view the Court has an inherent power to restore a suit dismissed for default, if there be a just and sufficient cause for restoring it, even if no sufficient cause is shown within the meaning of sec. 69 of the Civil Justice Ordinance, for the defendant’s non-appearance. Advocate Guma’a does not object to setting aside the default decree, but asked that the District Court should be directed to deal with the case as soon as possible. For these reasons we are satisfied that there is a just and reasonable cause for restoring this case, and we therefore order that the decree dated 2 January 1957 in Khartoum DC/CS/ 759/1956 be set aside, and in view of the long delay in this case we hope that the learned district judge will give this case priority, and deal with it as soon as possible. We make no order as to costs.

M.A. Abu Rannat C.J-    I concur.

Appeal Allowed.