Mbarak v Athman (Civil Appeal No. 14 of 1942) [1942] EACA 47 (1 January 1942)

### APPELLATE CIVIL

### BEFORE THACKER, J.

# OMER BIN AHMED MBARAK, Appellant (Original Defendant)

## ABDULLA BIN ATHMAN, Respondent (Original Plaintiff)

### Civil Appeal No. 14 of 1942

Code of Civil Procedure—Judgment-debtor—Application for execution of decree -Order XIX Rule 8 (2)-No evidence as to debtor's means-Order for imprisonment in default—Leave to appeal—Variation of original order-Courts (Emergency Powers) Ordinance, 1940.

The Liwali in the Court below made an order for execution of a decree upon an application made merely by letter by the judgment-creditor—no application had been filed in terms of Order XIX, Rule 8 (2). The Liwali also ordered imprisonment in default of payment of instalments by the debtor without taking any evidence as to the debtor's ability to pay. The judgment-debtor applied to the Liwali for leave to appeal against this order and in addition to granting leave the Liwali varied his original order, by reducing the amount of each instalment ordered. Furthermore there was no application of or regard to the provisions of the Courts (Emergency Powers) Ordinance 1940 or of the rules thereunder.

Held (7-10-42).—(1) That a Court cannot make an order for execution by way of imprisonment against a judgment-debtor merely upon a letter asking for execution. Such an application must conform to the provisions of Order XIX, Rule 8 (2), of the Civil Procedure Rules.

(2) That an order for imprisonment of the judgment-debtor in default of payment of the debt should not be made without satisfactory evidence that the judgment-debtor is $\cdot$ able to pay.

(3) That upon an application for leave to appeal against the order for imprisonment in default of payment, it is not competent for that Court to vary its original order. It has no jurisdiction except to grant or refuse leave to appeal.

4) That the provisions of the Courts (Emergency Powers) Ordinance, 1940, and Rules made thereunder apply to Muslim Subordinate Courts as they do to other Courts of the Colony and must be complied with before an order for execution can be made.

### R. M. Doshi for the appellant.

#### A. B. Patel for the respondent.

JUDGMENT.—It is regrettable that the Liwali in the Court below did not make himself more conversant with or apply, if he was conversant with the relevant provisions of the Civil Procedure Code and the Orders and Rules thereunder and of the Courts Emergency Powers Ordinance 1940, and that the Vakils who appeared in the Court below for the appellant and respondent respectively did not bring these to the Liwali's notice. As it was, the proceedings in the Court below were conspicuous for errors in procedure and non-application of law. A Court may well despite effort go wrong upon a point of law but it is to be regretted that an entire disregard of the provisions of the Code of Civil Procedure and of another ordinance should result in costs consequent upon these errors falling upon one or other of the parties to the suit.

The first error was that set out in Ground 1 of the Memo of Appeal, namely in the Liwali making the order of the 27th June 1942 for execution of the decree upon a mere informal letter dated 25th June 1942 from the respondent to the Court. No proper or formal application in terms of Order XIX rule 8 (2) of the Civil Procedure Rules was filed. Nevertheless the Liwali acted upon it.

The second error was the omission to take evidence as to the debtor's means. An order for the payment of Sh. 100 per mensem was made upon no evidence whatever. All that the judgment-debtor's Vakil had said was that the debtor could pay in small instalments. On the 23rd July 1942 the defendant applied to the Liwali for leave to appeal against the order for the payment of Sh. 100 per mensem and this was followed by the next error of the lower Court. The Court had simpliciter either to give leave to appeal or refuse it but the Liwali saw fit to utilize the opportunity by varying his original order of 27th June 1942 and reducing it to Sh. 50 per mensem. Again, no evidence was taken upon which to base this amount, although, of course, it is to be remembered that this was not an application for execution, but an application for leave to appeal. This order varying the previous order was made, of course, without, jurisdiction and improper. Leave to appeal appears to have been given, although the record might well have been made more clear and specific on the point. The record somewhat vaguely says "Vakil for defendant applies for copy of these two orders to appeal against and I agree." I have, however, previously ruled, after consultation with the Chief Kathi, that the original Arabic note made by the Liwali probably means that he gave leave to appeal.

In addition to these mistakes, there was an utter disregard of the provisions of the Courts (Emergency Powers) Ordinance 1940. No one, Liwali or Vakils, thought of this Ordinance or if any of them did, they kept silent upon it. The debt, the subject of the lower Court proceedings appears to have been contracted between the parties on a date or dates prior to the commencement of the ordinance and therefore the judgment-debtor was entitled to the protection of the ordinance and the judgment-creditor was not empowered to proceed to execution without first obtaining leave from the Court to do so.

Mr. A. B. Patel, for the respondent, admits that there was no proper application before the lower Court on the 27th June, 1942, as required by the Civil Procedure Ordinance, but has argued that no objection was taken to that fact by the Vakil for the appellant, and that the defendant himself offered to pay by small instalments and that it therefore was an application by the appellant, in effect, under Order 18 Rule 11 (2), and that the appellant should have satisfied the Court what amount or amounts he could pay; and, further, that the Liwali properly exercised his discretion and made an order for instalments, and that the proceedings are therefore in order and that the order of the 27th June 1942 ought not to be disturbed.

The argument is ingenious but does not find favour with me. The proceedings on the 27th June 1942 followed upon an invalid application by the judgmentcreditor for execution. It was not in law an application by the appellant to pay by instalments and I have shown already that the respondent's application was not in accordance with the provisions of Order XIX Rule 8 (2). Anything that flowed thereafter was without jurisdiction and invalid *ab initio*.

Mr. Patel submits, too, that as no objection was raised by the appellant at the time the order was made on the 27th June 1942, this should be borne in mind in the matter of costs.

I have given this matter my consideration but I do not think that I ought to make any order other than that costs should follow the event, in the usual way.

For the reasons I have stated, the appeal is allowed with costs here and in the Court below, in the proceedings both of the 27th June and 23rd July, 1942. The orders of the Liwali for payment of Sh. 100 and later of Sh. 50 per mensem are set aside.