(COURT OF APPEAL)

HEIRS OF MOHAMED ALI IDRIS v. MANSOUR STORES

AC-REV-542-1969

Principles

Civil Procedure—Prior adjudication—Civil Justice Ordinance, s. 40—Doctrine of res judicata is applicable to ex parte decree in absence of fraud or irregularity

The doctrine of res judicata is applicable to ex parte decree in absence of fraud or irregularity according to Civil Justice Ordinance, s. 40.

Advocates: Mohamed Gasim El Sid …………………… for the applicant

H. Wanni & Adalan …………………………… for the respondents

Judgment

Dafalla El Radi Siddig J. August 22, 1970 :—Applicants sued respondent for the recovery of £S.750.000m/ms. The learned District Judge decided that his Court had jurisdiction and on April 1, 1969 an amended plaint had been filed. It had been stated for respondent in reply that the sum claimed had been adjudicated upon in their favour in a previous suit inter Se. The learned District Judge dismissed the suit on the ground that it is res judicata in view of the decision in CS-154-1962. I noticed that the suit number is wrongly quoted. It is Suit No. 157-1962.

It is contended for applicant that the present suit is based on fraud qua an element for money had and received. In reply it is stated that the suit had been dismissed for lack of a cause of action under the Civil Justice Ordinance, S. 56, otherwise the facts support a contention of constructive res judicata.

Even applicants admit that a court passed judgment for respondent against applicants the deceased. In CS-157-1962 where respondent is a plaintiff and applicants are the defendants the decree is ex parte. But the court refused to reopen the suit owing to the fact that applicants failed to fulfill a condition as to costs. The decision had been upheld in the Court of Appeal.

In the light of the above, since the sum claimed is with respect to the very sum decreed in CS-157-1962 to allow applicants’ claim would be to disturb the previous Court of Appeal decision.

Furthermore, the revision raised the legal point as to whether the doctrine of res judicata is applicable to a matter decided ex parte. To my mind it is. See Sarkar, Civil Procedure (13th ed., 1954), p. 36, where it says:

“In absence of fraud or irregularity, a decree obtained ex parte is binding for all purposes as a contested decree.”

Thus for the above reason and the fact that to allow this suit will render the previous decision of the Court of Appeal futile I uphold the dismissal order.

No order as to costs.

Tawfig Abdel Mageed J. October 7, 2970 : —I agree.

The applicant, by virtue of the Civil Justice Ordinance, s. 40, is precluded from instituting the second suit on an issue heard and finally decided by the court in the former suit. The default decree the respondent obtained against the applicant cannot be attacked; but only on the ground that it was obtained by fraud or collusion; because a judgment obtained by fraud or collusion cannot operate as res judicata.