Jivanji and Another v Jivanji and Another (C.A. 29/1930) [1930] EACA 41 (1 January 1930)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), SIR CHARLES GRIFFIN, C. J. (Uganda), and PICKERING, C. J. (Zanzibar).

1. GULAMHUSEIN MULLA JIVANJI (Original First Plaintiff) 2. TAIBALI MULLA JIVANJI (Original Defendant)

$(Appellants)$

## 1. EBRAHIM MULLA JIVANJI

## 2. DAIMBHAI, wife of ALLIBHAI MULLA JIVANJI (Original Second and Third Plaintiffs)

## (Respondents). C. A. $29/1930$ .

Civil Procedure Rules, 1927, Order 42, Rule 1-application for review of judgment. Application of this rule to Arbitration proceedings.

Held: -That it is the duty of a party who wishes to appeal against or apply for a review of a decree or order to move the Court to draw<br>up and issue the formal decree or order.

(The Judgment of SIR JACOB BARTH also deals with the question whether there can be a review of a decree which has been issued upon an arbitration award, and further rules that the period within which an application may be made to set aside an award cannot be extended (Art. 158 of the Indian Limitation Act. $1877$ ).

Ross and Hopley for appellants.

Modera for respondents.

SIR JACOB BARTH, C. J.—The history of the litigation out of which this appeal arises is that the action was instituted on the 25th May, 1927. The matters in issue were referred to the arbitration of Ladharan Devraj who filed his award in June, 1930. The award was opened by the Court on 10th June, 1930, with, I gather, a view to fixing the arbitrator's fee. The fee was fixed on 16th June.

On the 8th July Mr. Hopley apparently applied ex parte verbally for an extension of time in which to lodge objections to one month after the documents in the file had been translated and ready for use. This was granted by STEPHENS, then Ag. C. J.

Copies of the documents were supplied on 24th July. On 10th August Mr. Modera for the second and third plaintiffs, the respondents in this appeal, applied with notice to Mr. Hopley the advocate for the defendant for Judgment to be entered in

accordance with the award. Mr. Hopley objected at the hearing of the application that he had been given a month in which to file objections from the date on which the documents were served on him (i.e. 24th July), and that he had in fact filed objection proceedings on 18th August. It was urged that the application was made under O. XLIII R. 16, the time for making an application to set aside the award having expired, such time being ten days from the date when the award was submitted. to the Court (Art. 158 Indian Limitation Act) subject to the provisions of section 12 of the Act. In this case the period of limitation would run from 24th July.

On this application DICKINSON, J., held that the application to set aside or vary the award was out of time, and on 25th August, 1930, entered Judgment in accordance with the award.

The next step was an application under O. XLII R. 1 for review of the order of 25th August. DICKINSON, J., held on 13th September, 1930, that he had no power to review his Judgment, it being one from which it is specially provided no appeal shall lie (O. XLIII, R. 16 (2)) and therefore not coming within O. XLII, $R. 1$ (6). This appeal is from those two orders.

LORD MACNAGHTEN in delivering the Judgment of the Privy Council in Ghulam Khan v. Muhammad Hasan (1902, 29 Cal., 167) said with reference to the words "No appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award " appearing in section 522 of the Indian C. P. Code, $1882$ —" These words appear to be perfectly Their Lordships would be doing violence to the plain. clear. language and the obvious intention of the Code, if they were to hold that an appeal lies from a decree pronounced under section 522, except so far as the decree may be in excess of or not in acordance with the award ". In dealing with the question of revision Lord Macnaghten said—" Unfortunately in dismissing the appeal it was suggested by the full bench that although an appeal would not lie from the decree of a sub judge, an application might be made in revision under section 622 of the Code. Accordingly the appellants were permitted to present an application in revision under that section. The Court heard the case in revision and altered the decree in a manner which might have been proper if the Court had had jurisdiction to interfere in the matter. The alteration satisfied the appellants even less than the original decree. Their Lordships are inclined to agree with the view of CLARK, J., in 84 P. R., 1901, that in the case of an award revision would be more objectionable than an appeal. If an application in revision were admissible in a case like the present the finality of any award would be open to question. Their Lordships, however, are of opinion that such an application. is incompetent."

Order XLIII, r. 16, reproduces section 522 of the Indian Code of 1882. The order of STEPHENS, Actg. C. J., extending the time in which the award could be attacked was obviously ultra vires Art. 158 of the Limitation Act. He appears to have been rushed and thought he was making a competent order.

It is a pity that the application for judgment was not heard by STEPHENS, Actg C. J., who was at the time such application was heard in the Court precincts, but in view of the obvious propriety of the order of DICKINSON, J., pronouncing Judgment in accordance with O. XLIII, R. 16, I see no ground for interfering.

I agree with the Judgment of my brother Pickering regarding the necessity for a decree in the case of an appeal from a judgment. This appeal is in form partly an appeal from the order of 13th September, refusing review of the Judge's order of 2nd August, and I considered it advisable to deal with the facts.

The appeal should be dismissed with costs.

SIR CHARLES GRIFFIN, C. J.—This appeal must be rejected as no decree has been drawn up to follow on His Honour Mr. Justice Dickinson's judgment of the 25th August, 1930 (Court of Appeal Rules, $R. 6$ ). As the appeal from Mr. Justice Dickinson's order of the 13th September is an appeal from an order based upon the judgment of the 25th August referred to above it is clearly not possible for this Court to give any decree upon it.

I wish to guard myself from expressing my concurrence with the views expressed by the learned Chief Justice of Kenya as to the effect of O. 43, R. 16.

The respondents must have their costs.

PICKERING, C. J.—In the second part of the memorandum. this appeal is said to be lodged in the first place against an order or decree of the 25th day of August, 1930. In the course of the hearing I asked Mr. Ross, who appeared for the appellants, whether he could state with greater precision the character of this portion of the appeal, and whether, if he were purporting to appeal against a decree, the decree had been drawn up. I understood him to reply that no decree had been drawn up and that no attempt to do so had been made. Now, leaving aside any question as to whether the reasons given by the learned Judge in his Judgment of the 25th August, 1930, are or are not sustainable, it is manifest that he was exercising the powers arising under and following the procedure enjoined by Order XLIII, Rule 16, of the Kenva Civil Procedure. The pronouncement then delivered on the 25th August, 1930, in these proceedings was a judgment, and the second portion of the rule

provides that "upon the judgment so pronounced a decree shall follow". In my opinion whatever be the views which one may hold as to the grounds which it is competent for an appellant to raise in an appeal against a decree issued in accordance with the provisions of Rule 16 $(2)$ , the second portion of this present appeal must be held to be an appeal against a decree. This Court has frequently refused to entertain appeals against a decree unless that decree has been drawn up and has been lodged together with the memorandum as required by Rule $6(2)$ of the Rules of this Court. The pronouncement of the 25th August cannot in my opinion be regarded as an order and no course is open to this Court but to dismiss this portion of the appeal. The form of this portion of the memorandum taken together with Mr. Ross's statement indicates that the appellant has deliberately abstained from taking any steps to cause a decree to be issued. The first portion of the memorandum sets out the grounds of appeal "As to the order or decree of the 13th September. 1930." That order was made upon an application for review lodged on the 29th August asking that (1) the order decree or judgment delivered on the 25th August, 1930, be reviewed by the learned Judge who had delivered the same or alternatively (2) that the first plaintiff do have liberty to appeal against the said order decree or judgment.

Y

I assume that the alternative prayer was preferred under Order XL, Rule 1 $(2)$ and $(3)$ for leave to appeal against an order. As I have said in my opinion the pronouncement of the 25th August was not an order and no leave to appeal under Order XL, Rule 1, could for that reason be given. The learned Judge heard the parties upon the first portion of the application to review. Two grounds were raised; the first was that Mr. Hopley had no instructions from the first plaintiff to appear on the 25th August. This ground in reality raised the question of the effectiveness of the service on Mr. Hopley on the 18th August. The second ground put forward for review was that the order decree or judgment of the 25th August contained mistakes and errors apparent on the face of the record in that it was made in the face of an existing order of the Supreme Court. $A$ part from any consideration whether the course adopted by the learned Judge in relation to the $ex$ parte order of the 8th July, 1930, was or was not well founded, the question emerges as to the precise character of the grievance which must be experienced by a person applying for a review of judgment under Order XLII. A person applying for a review under that Order must be "aggrieved by a decree or order." The words "decree" and "order" are here used in the sense set out in the definitions in section 2 of the Civil Procedure Ordinance. Each decree necessarily follows the judgment upon which it is grounded and if a person is aggrieved at the decree his application should be for a review of the judgment upon which it is based. But, in my opinion. however aggrieved a person may be at the various expressions

contained in a judgment or even at various rulings embodied therein, unless that person is aggrieved at the formal decree or the formal order based upon the judgment as a whole, that person cannot under Order XLII appear before the Judge who passed the judgment and argue whether this or that passage in the judgment is tenable or untenable. The ratio decidendi expressed in a judgment cannot be called in question in review unless the resultant decree is a source of legitimate grievance to a party to the suit. In these proceedings no resultant decree on the 29th August, 1930, had yet come into existence. Indeed no attempt to draw up any has as yet been made. It is the duty of a party who wishes to appeal against, or apply for a review of, a decree or order to move the Court to draw up and issue the formal decree or order.

As regards the first portion of the memorandum filed herein I am of opinion that the appellants were not persons aggrieved. within the meaning of those words in section 81 of the Civil Procedure Ordinance; and as regards the second portion of the memorandum it was necessary for the due institution of an appeal that a copy of the decree appealed against should have been lodged with the memorandum. No regular appeal which can be entertained has been instituted and so far as the second portion of the memorandum purports to institute an appeal, it fails and is ineffective.

For these reasons I would direct that this appeal stand dismissed and that the appellant bear the respondent's costs.