(Court OF APPEAL)*

SADIG  ABU  AGLA  AND OTHER v. BULIDING MATERIAL LTD.

AC-REV-77-1965

Principles

·  Civil Procedure-Stay of execution-execution of final decree may be stayed against the will of decree holder upon sowing good cause and furnishing adequate security-Pendency of case between same parties is a good cause.

When execution proceedings were commenced against applicant, he prayed for the stay of the execution until the disposal of a pending case between him and the respondents and furnished adequate security. Acting Province Judge refused to stay the execution.
Held: execution of final decree may be stayed against the will of the decree holder when a good cause is shown and adequate security is furnished by the party against whom the decree is passed. Pending case between the same parties in the execution is a good cause to stay execution. Indian Code of Civil proceedings s, 243,is applied.

Judgment

Advocates: Mahdi Sharif…………………………………….for applicants

                  Abdel Wahab Mohamed Abdel Wahab………….for respondents

Osman El Teyeb J. May 25.1965:-This is an application for revision from order of Acting Province Judge, Khartoum , dated March 2.1965 refusing to stay an execution entered against applicants for the enforcement of decree for  the sum of Łs.32.441.305m/ms.

This decree was the result of a suit raised by respondents against applicants claiming the said sum on promissory notes, that applicants admitted but pleaded that they were for the value of four truck and four trolleys, that were of unmerchantable quality and counterclaimed for  damages assessed at Łs.37.000.000m/ms.The Court rejected the plea as constituting no defense for the promissory notes, it passed thee decree and directed applicant to seek his remedy by separate action.

Meanwhile respondents applied for execution that of the proceedings under consideration and applicants instituted their suit for damages. In the execution prohibitory others were issued that result ed in attachment of the sums of Łs.183.000m/ms.and Łs.143.000m/ms.in the Sudan Commercial Bank. Also an order of attachment was issued for the attachment of the four trucks and the four trolleys that were the subject-matter of the transaction and that were sent by applicants to respondents. Eventually an order of sale was issued in respect thereof. Application was rejected.

Hence comes this application . the grounds relied on by applicants are that they are prepared to offer and adequate security-a number of grater that the value of the decree and that their claim was arising of the same transaction of the promissory notes. Respondents opposed the application on the ground that the stay of execution of the promissory notes. Respondents opposed the application on the ground that the stay of execution would defeat the ends of Justice.

There is nothing in our law authorizing a Court to stay an execution of a final decree against the will of the decree holder, and it is its dutyt to observe that expediency in enforcement of such a decree is a matter required by law and public policy. But by application of the principle of Justice, equity and good conscience a decree may be stayed on sufficient cause being shown by the applicants. The cause that is being relied on this case, is the pendency of the case raised by applicants against respondents, that is mentioned above. Applicants in their submission refer to a rule of Procedure in the Indian Code of Civil Procedure,s,243, that reads as follows:

“where a suit is pending in any Court against the holder of a decree of such Court on the part of the person against whom the decree was passed the Court may on such terms as to security or otherwise, as it thinks fit, stay the execution of the decree until the pending suit has been decided.

This a rule on the point, and its application is not contrary to Justice, and I am persuaded buy it to allow this application by ordering stay of this execution until the disposal of the pending case, upon furnishing adequate security or on the attachment of any property of debtor without selling it. I have to make an exception from  the operation of this order with respect to the four trucks and four trolleys that he  already been put up for sale , if it was not before carried out.

Order issue accordingly.

Babiker Awadalla C.J. May .25.1965- I concur.

* Court: Babiker Awadalla C.J. and Osman El Tayeb J.