Civil Procedure-Decree-Review and amendment of decree to conform with
judgement

Execution-Decree-Execution can only proceed within the terms of the decree
ludgement=-Decree-s-Executlon can only proceed within the terms of the: decree
The plaintiff obtained a judgement in 1918 against the defendant for
the support of their two children at the rate of £E.2 per month for each

• Court: Creed C.l., Sandes and A.l. Clexton 1.1.

child. The decree which followed, however, only ordered the payment of
£E.4 for the month of May 1918. In December 1939 plaintiff applied for
execution for back payments from 1938 onwards. The district .judge al-
lowed execution and this order was confirmed by the High Court. The de-
fendant appealed.

Held: (i) An execution order cannot go beyond the terms of the de-
cree upon which it is founded.

(ii) A decree may be amended to conform to the judgement upon
which it is based unless such amendment is barred by limitation, but only
upon the condition that nothing has intervened which would render amend-
ment inexpedient or inequitable.

(iii) Where the original judgement was intended to benefit infant chil-
dren, and those children have since come of age, there has been such a
change of circumstances as to make amendment of the decree inequitable,
particularly since there"is nothing to prevent a new suit for maintainance.

Revision

The plaintiff's application for execution was for the recovery of
the amount of support payments in arrears from January 1, 1938.
The defendant made all monthly payments up until that time. The
facts otherwise appear in the judgement of Creed C.J.

Advocates: T. Francondi ... for applicant; E. Kronfli
for respondent.

December 29, 1940. Creed C.J.: This is an application for
the revision of an order made by the Judge of the High Court, Gezira
Province, confirming an order dated September 10, 1940, of the
district judge, Wad Medani, allowing execution of a decree of the
Blue Nile Province Civil Court in civil suit No. 59 of 1918. The
decree which bears the date May 18, 1918, reads as follows:

"It is ordered that the defendant (Kritharis) do pay to the
plaintiff (Mariam bint Dasta) the sum of £E.4.000 m/rns for
the month of May and costs."

It is now admitted that the decree of which execution is sought
was not drawn up in accordance with the judgement upon which it
was founded. The learned judge who decided the case refers to the
claim in his judgement as being "a claim for a sum of money for the
support of two children" and "for a monthly allowance," and con-
cludes that the two children for whom the maintenance was claimed
could be supported "foe the sum of £E.2.000 m/ms each per month."

An appeal was immediately lodged against this decree and was
dismissed by Dun C.J. on December 10, 1918. The learned Chief

Justice, as is clear from the two concluding paragraphs of his judge-
ment, also treated the decree as entitling the decree holder to con-
tinuous monthly payments. in the meantime execution No. 18 of 191 S
had been allowed and a slim equivalent to ££.4.00 m/rns per month
was paid into court. On the dismissal of the appeal this sum was paid
out to the decree holder and no further action appears to have been
taken under these proceedings.

In 1932 the decree holder had occasion to make a further ap-
plication to the court, but the application was not processed. In 1934
the decree holder applied for execution which was refused, and not-
withstanding an informal expression of opinion by Owen C.l. was not
proceeded with.

In December 1939 the decree holder again applied for execution.

This was at first refused, but on the learned district judge's attention
being drawn to the opinion of Owen C.l. referred to above, he re-
viewed his order and allowed execution. Against this order an ap-
plication has been made to tbe High Court of the Gezira Province
(which upheld the district judge) and thence to this court.

This court has no hesitation in affirming that execution can only
proceed within the terms of a decree, but if such decree fails to carry
out the manifest intention of the judgement upon which it is founded,
machinery has been provided to permit of the decree being reviewed
and .;mended With leave. So far as not barred by limitation it is
possible for the court to amend a decree after any length of time.
subject only to one condition, namely, that nothing has intervened
which would render it inexpedient or inequitable for the court to do so.

One fact stands out clearly in this case. It is that the infant
children whom the judgement and decree were intended to benefit arc
now of age. This seems to us to constitute such a change of circum-
stances as to make it on equitable grounds inappropriate to amend the
decree to accord with the judgement. There is the further fact that
to give effect to the application for execution in favour of the children
it would be necessary also to amend the whole claim in respect of the
parties. To do so after the lapse of more than twenty years and on
the facts before the court would not accord with the principles of
justice .equity and good conscience which it is the duty of this court
to follow. Nothing in this judgement precludes the institution of a new
suit for maintenance.