(HIGH COURT OF JUSTICE)

HASSAN KHALIL SULEIMAN vs. EL A’GIB ALl

(HG/RE V/41/1957)

Revision.

Principles

·  practice  decree made by Judge — whether Judge can retract decree.

A Judge has no power to retract a decree once passed.

Judgment

The defendant failed to appear in an action brought against him by the plaintiff. The defendant telegraphed the Court that he was ill, but the telegram reached the Judge too late. The Judge (District Judge, Khartoum) accordingly passed a default decree against the defendant. Subsequently, on 13 January, 1957 the defendant applied to have this decree set aside, and the Judge being satisfied with his application, and the decree-holder failing to appear, the decree was set aside. The case was then left to stand over pending further application by the plaintiff. Such application was duly made and the case came on for trial on 5 February 1957. On this date, however, the Judge refused to allow the defendant to have the case re-opened unless he deposited with the Court the amount of the damages assessed in the original default decree.

Advocates: Abdin Ismail for applicant (the defendant) Abdullah el Hassan for respondent (the plaintiff)

D.S. Abu Ghazaleh P.J. stated the facts and continued

The applicant complains against this order of February 5 on the ground that it contradicts the previous order made on January 19 in the same civil suit.

Now it is quite true that sec. 69 of the Civil Justice Ordinance’

(1) Sec. 69 of the C.J.O. is as follows

Where a decree is passed against a defendant who has not appeared he may apply at any time within thirty days from the date on which any process for enforcing the decree against him has been executed to the Court by which the decree was passed for an order to set it aside, and if he 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.

gives the Court a judicial discretion to set aside a default decree, with or without conditions, and the Court in exercising its judicial discretion is entitled to impose any reasonable conditions which it might find necessary in the circumstances of the case. But it seems to me that once the Court exercises its judicial discretion on the point in issue, and orders that the default decree beset aside, it cannot subsequently retract that order. The reason for this is that judicial proceedings must be certain and not fluctuating from one sitting to another.

Therefore this application for Revision is allowed and the order of the learned District Judge of  5 February  1957 is set aside, and his order of 19January  1957 is restored. Respondent is to bear the costs of this Revision.

Application for Revision allowed.