(COURT OF APPEAL)

ZEINAB EL ZUBEIR v. HASSOBA KHOGALI

AC-REV-215-1969

Principles

  Civil Procedure—Imprisonment for non-payment-—Civil Justice Ordinance, s. 198— Applicable when all possible ways to compel the judgment-debtor to pay the debt have been exhausted and by application from the judgment-creditor

The courts should not resort to the provisions of Civil Justice Ordinance, s. 198, unless they have exhausted all possible ways to compel the judgment- debtor to pay the debt and only when they receive an application from the judgment-creditor to invoke the above section.

Advocate: Osman El Kayal for the applicant

Judgment

Tawny Abdel Mageed J. February 27, 1970 :—This application for revision is against the order of the learned District Judge, Khartoum, in EX-20-1969, whereby he committed the applicant and judgment-debtor into prison for six months as from March 27, 1969. It seems that the learned District Judge invoked Civil Justice Ordinance, s.198 (2) (b) when, presumably, it appeared to him that the applicant knowing herself to be unable to pay her debts in full recklessly contracted them. If this is so the judgment-debtor, the applicant, cannot be released unless the debt for which she is committed to prison is paid or otherwise satisfied in any manner—Civil Justice Ordinance, s.199 (2) (a) and (b).

However, it seems from the wording of the Civil Justice Ordinance, S. 198, that this section cannot be invoked by the court, unless there is an application from the judgment-creditor to do so. On such application being made, the court shall summon or cause the judgment-debtor to be arrested. The court shall examine the judgment-debtor as to his ability to pay the debt, the subject of the execution. When it appears to the court from that examination or by evidence adduced by the judgment- creditor that the judgment-debtor has committed any one of the faults mentioned under the Civil Justice Ordinance, s. 198 (2) (a), (b) or (c) the court may commit such judgment-debtor to prison.

The record of EX-20-1969 does not show that the judgment-creditor has applied to the court to invoke the provision of the Civil Justice Ordinance, s. 198. Hence, it was an improper procedure to invoke that section without such application.

The court had to follow the normal procedure of executions of decrees, i.e. by selling the attached movables first, if any, and then it should proceed under the Civil Justice Ordinance, s. i98, when it receives an application from the decree holder to do so.

This court is therefore of the opinion that the order of the commitment of the judgment-debtor to prison was a premature order; and courts should not resort to the provisions of the Civil Justice Ordinance, S. 198, unless they have exhausted all possible ways to compel the judgment-debtor to pay the debt and only when they receive an application from the judgment-creditor to invoke that section.

The order of commitment of the judgment-debtor to prison made by the learned District Judge, Khartoum, on March 27, 1969, should therefore be cancelled and the court below should exhaust all possible ways to compel the judgment-debtor to pay or satisfy that debt in any manner. In case the judgment-debtor fails to pay or satisfy that debt in any manner, the court below may proceed against her under the Civil Justice Ordinance, s. 198, when it receives an application from the decree holder to invoke that section.

Mahdi Mohamed Abmed 1. June 15, 1970:—I agree.