Boero and Co. (E.A.) Ltd v Mohamed (Civil Suit No. 1742 of 1953) [1954] EACA 25 (1 January 1954)

# ORIGINAL CIVIL

Before CRAM. Ag. J.

# F. BOERO & CO. (E. A.) LTD., Plaintiff

### HABIB MOHAMED, Defendant

### Civil Suit No. 1742 of 1953

Civil Procedure and Practice—Civil Procedure Ordinance, section 94—Judgment entered on application under Order 35, rule 2 but before decree passed-Submission in Court for an order to execute for the principal sum before ascertainment of costs—Whether submission competent—Order 21, rule 7 (2) -Whether application should be after passing the decree and in writing-Costs—Indian and English Procedure compared.

The plaintiff company applied to the Court for and obtained judgment against the defendant, as provided for by Order 35, rule 2. After the Court had entered judgment but, before any decree was drawn up and signed, the plaintiff's advocate applied orally in Court for an order, in terms of section 94 of the Civil Procedure Ordinance, that the decree should be executed forthwith, before the amount of costs was ascertained by taxation and that the costs be executable as soon as ascertained.

Held $(1-4-54)$ .-(1) That section 94 Civil Procedure Ordinance contemplated an application to the Court for an order for execution in an exceptional manner after decree which was, in this instance, a step distinguishable from the judgment.

(2) That an application for execution forthwith of the principal sum in a decree before ascertainment of costs is properly made in writing in terms of Order 21, rule 7 (2).

(3) The oral application, being incompetent, was refused with no order as to costs.

Cases referred to: Forster v. Baker, (1910) 2 K. B. 636 (C. A.); Rothschild v. Fisher, (1920) 2 K. B. 243 (C. A.). Practice under the English Rules of the Supreme Court,

Order 42, rule 18 compared.

Mrs. Kean for the plaintiffs.

$Ex$ parte.

RULING.—The plaintiff obtained judgment under Order 35, rule 2 and, at the time judgment was pronounced, applied orally, in open court, for an order, in terms of section 94 of the Civil Procedure Ordinance that the decree should be executed before the amount of costs incurred were ascertained by taxation and forthwith and that the costs be executable as soon as ascertained. The grounds were that, at the present time, owing to pressure of work in the Registry of the Supreme Court, delays of eight weeks before costs could be taxed were unavoidable.

The only point upon which the Court reserved its ruling was whether an oral application was competent. The section is unique in that it does not appear at all in the Indian Code of Civil Procedure and is in different terms from rule 18, Order 42 of the Rules of the Supreme Court in England. A further differentiation from English practice is the wide distinction in our law of procedure between a judgment and a decree. I have been unable to find any authority on this point in the reports in the Colony.

The Civil Procedure Ordinance at section 25, and the Rules at Order 20, rule 6 envisage a judgment, and a decree following upon the same in terms of the judgment, which is to include costs as awarded in the judgment. There is no provision for two decrees or for a direction, after judgment but before decree, that the decree, shall be split or executed in a certain manner, except in so far as is provided by section 94. That section does not envisage two decrees, but one only. It contemplates not an order after judgment and before decree, but a<br>situation in which a decree has been passed but is to be excuted in the future in a manner which is exceptional to the rules. Plainly, the Court will not *ex proprio motu* make any order in terms of section 94. It is given a discretion by the section and it will only exercise that discretion if it is moved to do so. It can, in terms of the section, only be moved to do so after decree. The question is in what manner is the decree-holder to move the Court to exercise its discretion?

Order 50, rule 1 makes it mandatory that all applications to the Court, save where otherwise expressly provided for under these rules, are to be by motion and of necessity after notice. I have not been referred to, nor have I found, any express provision for oral application in such instance in the rules.

The English practice under Order 42 may be summed up in the words "one judgment, one execution" where, as a rule a judgment creditor cannot issue a series of small executions upon his judgment, making in the whole the judgment debt, upon one judgment he can issue only one execution. Forster v. Baker, (1910) 2 K. B. 636 (C. A.) and Rothschild v. Fisher, (1920) 2 K. B. 243 (C. A.). One exception to this general rule is to be found in rule 18 of Order 42 which provides that upon any judgment or order for the recovery or payment of a sum of money and costs there may be, at the election of the party entitled thereto, either one writ or separate writs of execution for the recovery of the sum and for the recovery of the costs, but a second writ shall be only for costs. That is, after obtaining judgment, the judgment creditor may elect to apply for execution by separate writs: once he has made his election it is final. His application for execution by two writs is his own election and no order of the Court is required and no notice is given to the judgment debtor. In my view, some such intention is implicit in section 94, not omitting to notice the distinction in Kenya between judgment and decree.

The decision to execute for the principal sum, before taxation of costs, is at the discretion of the plaintiff after he has obtained judgment and decree; but he is subject in that decision to obtaining an order of the Court, in terms of the section and, once he has obtained the order, that order will rule. No notice need be given to the judgment debtor for any equitable reason.

Turning now to Order 21, rule 6, the rule runs that where the holder of a decree desires to execute it, he must apply to the Court and in terms of rule 7 (1) he may apply orally to the Court at the time of passing the decree for the immediate arrest of the judgment debtor if he is within the precincts of the Court. No such application was made or is appropriate in the present case, and I refer further to rule $7(2)$ which provides that, save as otherwise provided by subrule (1), or by any other enactment or rule, every application for the execution of a decree shall be in writing and signed by the applicant or his advocate and specifying the mode in which the assistance of the Court is required and the amount of costs, if any, awarded. On receipt of such an application, the Court, if it admits the same, mandatorily must order execution of the decree in accord-. ance with the nature of the application, as provided by Order 21, rule 13.

Looking to English practice, which was the prototype for section 94, with respect, I am of the view that it is by written application that the decree holder must apply for an order. The Ordinance and the Rules are general and not specific upon this point; but, unless oral application after judgment and before decree is specifically allowed, then it is specifically prohibited. I am further of the view that an appropriate method of application in writing for an order under section 94 would be in terms of Order 21, rule 7 (2); and the Court, if it admitted the same, would make the order, as of course, provided on cause shown, it considered it necessary, in accord with the provisions of Order 21, rule 13.

I dismiss the oral application, although I am of opinion that if made in accordance with rules, it would succeed on the merits. There will be no order as to costs of the oral application.