(OURT OF APPEAL) *

ALl MOHAMED AHMED IBRAHIM v. AHMED EL NAEIM

AC-REV-700-1 965

Principles

·  Civil Procedure—Execution——Payment of debt by installment Justice Ordinance, Ord. XV, r. go—By application of judgment debtor and acceptance by decree holder—No examination of judgment debtor by court Civil Procedure—Execution—Payment of debt by installments—Civil Justice Ordinance. s. 198-judgment debtor has no property to be attached—Court after examining debtor fixes the amount without consent of decree holder

In case of execution to pay debt by installments, Civil Justice Ordinance, Ord. x r. go, provides that installments may be ordered on application by judgment debtor and by acceptance of the decree holder, without the examination of the judgment debtor as to his ability to pay. Under Civil Justice Ordinance. s. 198. installments may be ordered when judgment debtor has no property to be attached and after examining him as to his ability to pay without the consent of the decree holder.

Judgment

Advocate: Siddik Abdel Halim for applicant

El Fatih Awouda J. April 10, 1966 : —Applicant is the judgment debtor in two Singa District Court execution proceedings, namely, EX-37-1964 and EX 1964, initiated by one and the same judgment creditor. The total value of the two executions which were consolidated by order of the District judge LS -On October 19. 1964, both parties appeared before the District Judge when judgment debtor voluntarily expressed his willingness to pay the debt in monthly installments of varying amounts commencing November 1, 1964, and that offer was accepted by judgment creditor. The judgment debtor failed to pay the first installment when it fell due on November I, 1964. and consequently an order for his arrest was issued as well as an order for attachment and sale of his lorry. He was brought before the court on January 17, 1965. His application for the reduction of the installment to £S.2o.— was refused by the decree holder who applied for sale of the attached lorry. On February 6, 1965. the parties appeared before the court and in pursuance of an agreement between them judgment debtor paid £S.1oo.— and undertook to pay £S. monthly with effect from March , 1965. He again defaulted and thereupon sale was ordered to proceed. Judgment debtor applied to the Acting Province judge. Blue Nile Province, to stay the sale and to order reduction of the amount of the installment. The Acting Province Judge summarily dismissed the application.
 

In his application to this court, advocate for applicant contends that the District Judge in failing to examine the judgment debtor as to his liability to pay before fixing the amount of the instalment has acted contrary to express provisions of the law.

Payment of a judgment debt by instalments in execution proceedings may be ordered in two instances:

1. Under Civil justice Ordinance, Ord. XV, r. 50. Here it may be ordered on the application of the judgment debtor subject to the consent of the decree holder after the attachment of the property of the judgment debtor is made or before such attachment upon the judgment debtor furnishing security. The order made by the court in this instance carries out the will of the parties, i.e., an offer made by the judgment debtor and accepted by the decree holder.

2.Under Civil Justice Ordinance, S. 198. Here it is assumed that the judgment debtor has- no property that can be attached and sold and payment by instalments is the only practical means for the satisfaction of the debt. The application to have him examined as to his ability to pay comes from the decree holder. The amount of the instalment is assessed by the court according to his ability and is not subject to the consent of the decree holder.

The instalment ordered to be paid by judgment debtor in this execution is made under Civil Justice Ordinance, Ord. XV, r. 50. Judgment debtor cannot insist on the reduction of its amount. On the contrary: on failure on the part of judgment debtor to pay the instalment the court is obliged to aside the order of payment by instalment and; on the application of the decree holder, must issue process for the recovery of the whole unpaid amount which includes sale of the attached property.

This application has no merit and should therefore be summarily dismissed.

1966:—I agree. This application is

Osman El Tayeb J. April 10, summarily dismissed.

* Court Osman El Tayeb J. and El Fatih Awouda J.