Mohamed v Shako and Another (Civil Appeal No. 60 of 1952) [1952] EACA 174 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and Cox, C. J. (Tanganyika)

**ABDUL WAHED HAJ MOHAMED, Appellant (Original Defendant)** $\boldsymbol{\nu}$ .

(1) MAZAL SHELEMO COHEN SHAKO, (2) RACHEL SALEM ISHAK, Respondents (Original Plaintiffs) Civil Appeal No. 60 of 1952

(Appeal from the decision of the H. M. Supreme Court of Aden—Campbell, J.)

Judgment—Orders under Aden Rules of Court 293, 298 and 299—Whether final judgment—Whether appeal subject to leave.

The respondent decree holders applied to the Supreme Court, Aden, for a sale to proceed and the Court ordered

(1) that the property should be sold;

(2) that the mortgagees should have a right to bid and fixed a reserve price.

These orders were made under Aden Rules of Court Rules 293, 298 and 299. The appellant filed a memo of appeal and applied for a stay. The stay was refused but on an ex parte application to the Eastern Africa Court of Appeal an interim stay was granted until the determination of this appeal. It was argued by respondents that the order of the Supreme Court, Aden, is not a final judgment within the meaning of section 6.(1) (a) of the Appeals to the Court of Appeal Ordinance, 1948 (Aden Ordinance 22 of 1948), and therefore no appeal lies as of right and the appellant had not obtained leave.

*Held* $(24-10-52)$ —(1) There was nothing final or conclusive about the order and the judgment appealed against is not a final judgment.

(2) The right of appeal to the Court of Appeal for Eastern Africa is conferred only by the municipal legislation of the Territory from which the appeal comes. Appeal dismissed.

Kaderboy for appellant.

Respondents, absent unrepresented having filed written arguments.

JUDGMENT (delivered by SIR NEWNHAM WORLEY (Vice-President)).—This appeal marks yet another stage in the attempt by the respondents, who are decree holders, to obtain execution of their decree by the sale of the appellant's property, which was considered by this Court in Civil Appeal No. 47 of 1950. In compliance with our order in that appeal, the Supreme Court of Aden heard and determined the appellant's application, made on 27th March, 1950, to have the sale of the suit premises conducted on 21st March, 1950, set aside on the grounds of irregularity; and the learned Judge of the Supreme Court did, after hearing the parties, uphold one ground of objection and set aside the sale. Thereafter the decree holders made further application to the Supreme Court for the sale to proceed, and on 25th May of this year Campbell, J. made an order in the following terms: "It is hereby ordered that, (1) the property be sold by the Nazir of the Supreme Court on 15th July, 1952, at the premises; (2) mortgagees to have the right to bid; a reserve price is fixed as regards them of Sh. 75,000." These orders were made under the Aden Rules of Court: Rules Nos. 293, 298 and

299 respectively. The further terms of the order relate only to advertisement of the sale and need not be set out. The appellant thereupon, on 4th June, 1952, filed a memorandum of appeal in the office of the Deputy Registrar of this Court and applied for a stay of the order of 28th May. This was refused, but on application ex parte to a Judge of this Court an interim stay was granted until the determination of this appeal.

The respondents (the decree holders) have not appeared either in person or by advocate, but, as they are entitled to do under the Rules of this Court, have filed written arguments, the first of which is in the nature of a preliminary objection based on the submissions that the order of the Supreme Court made on 28th May, 1952, is not a "final judgment" within the meaning of section 6 (1) (a) of the Appeals to the Court of Appeal Ordinance, 1949 (Aden Ordinance No. 22) of 1948), and therefore no appeal from it lies as of right, and that the appellant has not obtained leave to appeal from the Supreme Court under the provisions of section 6 $(1)$ $(b)$ .

As this Court has often had occasion to point out, a right of appeal to this Court is conferred only by the municipal legislation of the Territory from which the appeal comes. In the case of Aden, such right of appeal is limited and conditioned by the Appeals to the Court of Appeal Ordinance, 1948, and, in civil cases, an appeal lies as of right only "from any final judgment of the Supreme Court where the appeal involves, directly or indirectly, some claim or question respecting property or some civil right of the value of 2,000 rupees or upwards". An appeal from any other judgment of the Supreme Court, whether final or interlocutory, will only lie with the leave of the Supreme Court in the circumstances prescribed in paragraph $(b)$ of section 6 (1), or as provided in paragraph (c) with the leave of this Court when the Supreme Court has refused to give leave to appeal. In the instant case the appellant has not obtained leave, and therefore his appeal is only competent if the order appealed from can properly be termed a "final judgment".

In section 2 of the appeals to the Court of Appeal Ordinance "judgment" is defined as including "a decree, order or finding and refusal to make any order". Mr. Kaderboy, for the appellant, has spent a great deal of time and ingenuity in arguing that the "order" of 28th May, though termed an order, is in truth a decree within the meaning of the definition of that term in section 2 of the Civil Courts Ordinance (Chapter 22 of the Laws of Aden, 1945), resting his argument chiefly upon that part of the definition which provides that the term decree "shall be deemed to include the determination of any question within section 40". The significance of the reference to section 40 lies in the provisions of sub-section (1) of that section, which enacts that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Now I do not propose to follow Mr. Kaderboy into the intricacies of the Indian decisions on the interpretation of this definition. In India the distinction between a "decree" and an "order" is of the first importance in questions of appeal, because section 96 of the Code of Civil Procedure, 1908, provides that "save where otherwise expressly provided . . . an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court", whereas, in the case of orders, an appeal as of right will only lie in the special cases prescribed in section 104. The definition of "decree" in section 2 and the provisions of section 40 (1) of the Aden Civil Courts Ordinance are enacted in identical terms with the definition of "decree" in section 2 of the Indian Code of Civil Procedure, 1908, and with section 47 of the same Code respectively. It may, therefore, be of value to quote the following passage from Chitaley's Commentary on the Indian Code of Civil Procedure, 2nd edition, 1935, volume I, page 442:-

. "The phrase 'determination of any question' within section 47 does not make every decision of any question within this section a decree. In order to be appealable as a decree, the decision must also have the essential characteristics of a decree as defined in that section, that is, it must also be the formal expression of an adjudication conclusively determining the rights of the parties. If not, the order is merely an interlocutory one and is not appealable as a decree."

At page 1925 of volume 2 of the same Commentary, the learned authors discuss whether orders made under Order 21, rule 66 (which corresponds to Rule No. 293 of the Aden Rules of Court under which the order for sale was made) are appealable as decrees under section 47, read with section 2, and they say: "This question depends on two further questions, namely (a) whether proceedings under this Rule are of an administrative or a judicial character, and (b) whether orders under this Rule amounted to a determination of a question $(b)$ within section 47"; and they come to the conclusion that the answer to these questions must depend on the particular order in question in each case. A number of examples are given in the Commentary which I do not propose to refer to beyond saying that they suggest by analogy that the order in question here would not be deemed to be appealable. I also note that in Chitaley's Commentary (Volume 2, page 1951) there is a note that, in India, an order granting or refusing leave to bid to the decree-holder is not appealable. If it were necessary to decide the point. I should be disposed to hold that in the instant case the learned Judge's order of 28th May was not an order which amounted to a determination of a question within the meaning of section 40 of the Civil Courts Ordinance.

But I do not find it necessary to decide that point because, whether the adjudication in question here is properly considered as a decree or an order, it is quite clear from the terms of section 6 of the Appeals to the Court of Appeal Ordinance that the important distinction is between final decrees or orders on the one hand and interlocutory decrees or orders on the other. For my part, I think that reference to the Aden Rules of Court makes it abundantly clear that the order now in question is not in any way or in any sense an adjudication conclusively determining the rights of the parties. It was, as I have said, made under rule 293 and appointed a day for the sale by auction of the suit property; it conferred upon the decree-holders permission to bid for and purchase the property (rule 298), and as the decree-holders are, or were, mortgagees of the property, it fixed a reserve price as regards them in accordance with the provisions of rule 299. But there is nothing final or conclusive about this order. Under rule 310, the judgment-debtor may obtain a postponement of the sale to enable him to raise the amount of the decree; the mortgagees may exercise their right to bid or may refrain from doing so. If they do bid, it does not follow that they will be the purchasers of the property; the sale might indeed be abortive if the reserve price is not reached. Furthermore, even if the auction is held and the property sold, the judgment-debtor may apply under rule 316 or under rule 317 to have the sale set aside; and finally the sale does not become absolute unless and until the Court shall make an order of confirmation under rule 319. When such an order has been made and a sale of immovable property has become absolute, the Court grants a certificate under rule 321 specifying the property sold and the name of the person who is declared to be the purchaser.

In my opinion, therefore, the preliminary objection taken to this appeal should be upheld. The judgment appealed from is not a final judgment, and, since no leave has been obtained from the Supreme Court, this appeal is incompetent and should be dismissed.

In view of the criticisms contained in the judgment of this Court in Civil Appeal No. 57 of 1950, on the manner in which proceedings were conducted and appeal records prepared in the Supreme Court of Aden, I wish to record that I have noted with pleasure the improvement in the preparation of the record in the present appeal. It would, however, be of further assistance to this Court if a note were made of the Rule or Rules under which applications and orders are made.

SIR BARCLAY NIHILL (President).—I concur with the judgment delivered by the learned Vice-President. The appeal is dismissed.

As the respondents have not appeared before us, they cannot be awarded any profit costs, but the appellant must refund any actual disbursements they have incurred.

Cox, C. J. (Tanganyika).—I also concur with both the judgment and the order as regards costs and disbursements.