(COURT OF APPEAL) *

HEIRS OF ABDEL SAKHI IBRAHIM vs. AHMED ABDEL RAHIM

AC-Revision-167-59

Revision

Principles

  Practice and procedure—Service on only one of several parties—Default judgment against that party, effect of

     In an action on an account stated brought against the heirs of the signer of the account, only one heir was served with the summons. Judgment by default was given against him. The other heirs, one of whom was an infant, had no notice of these proceedings. Held: in these circumstances the case must be re-opened and argued on the merits. Another action between the same parties, in which a question of set-off might arise, to be stayed pending the trial of the one on an account stated.
 

Judgment

Advocates: Y. Nigm………………. for applicants

                   Ibrahim El Mufti………. for respondent

    7 November 1959 M. A. Abu Rannat C.J. : —This is an application for revision against the order of the Judge of the High Court, Khartoum, dismissing summarily an application for revision of the default decree given by the District Judge, Khartoum, dated 4th February 1959. The facts are shortly these: —The plaintiff brought an action against the Heirs of Abdel Sakhi Ibrahim, claiming the sum of £S.3I3.050m/ms on an account stated which was evidenced by a document dated 3rd April 1953 signed by the deceasedAbdel Sakhi Ibrahim

      Only one heir by name Abdallah Abdel Sakhi was served with summons to appear on 4th February 1959. Abdalla Abdel Sakhisent a wire from Malakal stating that he was ill and he was therefore unable to attend .The District Judge, however, did not accept that wire from Abdalla Abdel Sakhi and passed a default decree against all the heirs for the sum of £S.313.050m/ms and costs.

     On 25 May 1959 Advocate Y. Nigm on behalf of the heirs applied for the default decree to be set aside. On 1st June 1959Abdalla Abdel Sakhi appeared and made the same application. The District Judge ordered that the plaintiff should be summoned for 22nd June 1959.On that date Advocate I. El Mufti appeared for plaintiff, but neither Advocate Y. Nigm nor Abdalla Abdel Sakhiappeared. The District Judge dismissed the application.

* Court: M. A. Abu Rannat C.J., Abdel Rahman El Nur J.

    On 30th June 1959 defendants applied for revision to the Judge of the High Court against the order of the District Judge dismissing the application for setting aside the default decree. On 6th July 1959 the Judge of the High Court ordered that Advocate Y. Nigm should appear before him on the 16th July 1959. On the ,16th July 1959 Advocate Y. Nigm appeared and he was informed by the Judge of the High Court that if the heirs were prepared to pay the claim in deposits, he would order the re-opening of the suit. On the 23rd July 1959 the Court ordered that if the defendants paid the claim in deposits within fifteen days the papers should be brought before the Judge of the High Court. No payment was made and therefore the applicants, who are the defendants, applied to this Court for revision against the last order of the Judge of the High Court.

   We found in fact that none of the defendants besides Abdalla Abdel Sakhi was informed either of the claim or of the default decree and that one of the heirs by name Suad Abdel Sakhi is a minor and her guardian Fatma Murgan is living at Malakal.

    It is therefore inequitable to allow a default decree in such a case without giving opportunity for the heirs to rebut the evidence given by the plaintiff. However, advocate for respondent, Sayed I. El Mufti, states that he has no objection for the case to be re-opened provided that Civil Suit No. 1089/59 which was brought by the applicants in Omdurman Civil Court against the respondent for ejectment from Shop No. 179/13/24 Omdurman Suk, be stayed. That case was brought against the respondent for alleged arrears and the heirs applied for an order of re-possession on the ground that the respondent failed to pay the arrears. The respondent admits that he withheld the rent because of this claim.

   We, therefore, direct that the application for revision be allowed, that the case be sent back to the District Judge for hearing it on the merits, that OMD/CS/1089/59 be stayed pending the final decision in this case and that dealings in respect of Shop No. 179/13/24 Omdurman Suk be restrained until the final disposal of all these cases.

      Costs should abide the result of the decision in this case.

Abdel Rahman El Nur J.: —I concur.

                                                                                                (Order accordingly)