(COURT OF APPEAL)

MAYSARA EL SARRAG vs. DAIRAT EL MAHDI

 AC-Revision-60-59

Revision

Principles

Practice and procedure—Review—Whether consent of High Court Judge necessary— Civil Justice Ordinance, s. 184 (2)

Where a District Judge has issued a decree against an applicant in his personal capacity when in fact he has been sued in his capacity as “President of the Sudanese Youth Union”, the District Judge can review his decree and correct it without asking for the consent of the Judge of the High Court under C.J.O.,S. 184 (2).                                                                                                       
       Order of Judge of High Court set aside.
Judgment

         The facts are fully set out in the judgment of M. I. El Nur J.

Advocates: Mirghani el Nasri………………….. For applicant

                    Mansour Khalid ……………………for respondent

23rd June 1959 M. 1. El Nur J. : —The facts of this case are briefly as follows: by a written lease agreement respondents rented their premises known as Plot No. 8 (3), Block 6 F, West Khartoum, to applicant in his capacity as the President of the             Sudanese Youth Union, at a monthly rent of £S.11 as from 1st July 1956. On 5th September 1957 respondents instituted DC/HC/CS/477/57 against applicant whom they described in their plaint as President of the “Sudanese Youth Union “, for recovery of arrears of rent amounting to £S.143.000/ms and ejectment.                                         

    The hearing of the case was fixed for 20th October 1957, and when the summons was sent to him (defendant) he refused to sign it, saying he was no more the President of the Sudanese Youth Union, since his presidency terminated by the end of 1956 and a new President was elected in his place. Consequently the Court considered the summons as served on applicant, and on 9th December 1957  issued a default decree against him personally and not as President of the Sudanese Youth Union, ordering him to:                                                                                                                         

(a) pay respondents £S.157.I70m/ms arrears of rent and costs, and

(b) deliver possession of Plot 8 (3), Block 6 F, West Khartoum, to respondents.

Respondents having been allowed execution of that decree against applicant personally, the latter applied to the District Judge, contending that the tenancy subject-matter of the suit was not entered into by him in                                           

his personal capacity nor was the case instituted by respondents against him personally but in his capacity as President of the Sudanese Youth Union. He therefore applied that the decree be amended so as to be made against him as President of the Sudanese Youth Union to enable its execution against the Union and not against him personally. After considering that application the District Judge was satisfied that the default decree of 9 December 1957 was issued against applicant personally by mistake. He therefore stayed its execution and asked for leave of the Judge of the High Court under section 184, C.J.O., to allow him to review the said decree. On 19th February1959 the learned Judge of the High Court refused to give his consent under section 184, C.J.O., for review of that decree, saying “there was no cause” for it.

     Hence applicant applied to this Court for revision of the order of the Judge of the High Court dated 19th February 1959, and attached to his application a written admission by the new President and Secretary of the Sudanese Youth Union, which, like all political parties, had since been dissolved by Order of the Government, absolving applicant from personal liability under the contract of tenancy which they say rests with the Sudanese Union Association as such.                                                    

    After hearing the arguments put forward by the advocates for both parties and reading the record of the case before the District Judge we are satisfied that the refusal by the learned Judge of the High Court to give the District Judge his consent under section 184, C.J.O., to review his decree of 9th December1957  which consent was not essential in the circumstances, was not justified.                                                           

    The tenancy agreement was concluded by applicant in his capacity as President of the Sudanese Youth Union, and by their plaint respondents sued applicant in that capacity. It was only through a manifest error that the District Judge issued his default decree of 9th December 1957 against applicant personally. In these circumstances the learned District Judge could have reviewed his default decree and corrected it by showing it issued against “Maysara El Sarrag—President of the Sudanese Youth Union” without need at all for asking for the Judge of the High Court’s consent under section 184 (2), C.J.O.                                                                                                 

    Therefore to avoid further delays we hereby amend the default decree in CS/477/57 issued by District Judge, Khartoum, on9th December 1957 to make it against applicant in his capacity as President of the Sudanese Youth Union, to enable its execution against the dissolved Union’s property.                                                         

M. A. Abu Rannat C.J.: —I concur.

                                                                                     (Application allowed)