governing body of co operative college moshi vs joash mbonea chambo 2004 tzhc 49 30 august 2004

governing body of co operative college moshi vs joash mbonea chambo 2004 tzhc 49 30 august 2004

An order made by the executing court under Order XXI rule 9 of the Civil Procedure Code, 1966 in execution of a decree is deemed a decree under Section 3 and is appellable under Section 70(1); the application for stay of execution is not barred by estoppel by record as the prior dismissal was on technical grounds and not on merits; the application was not unreasonably delayed as it was filed promptly after the applicants became aware of the outcome of their previous application.

Citation
governing body of co operative college moshi vs joash mbonea chambo 2004 tzhc 49 30 august 2004
Parties
Applicant/judgement Debtor: The Governing Body of Co-operative College Moshi; Applicant/judgement Debtor: Prof. Suleiman Chambo; Respondent/decree Holder: Joash Mbonea Kavuta
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
30 August 2004
Procedural Posture
Miscellaneous Civil Application / Ruling on Preliminary Objections to Application for Stay of Execution
Outcome
All preliminary objections overruled with costs; application for stay of execution to proceed on merits.
Legal Topics
Stay of Execution, Right of Appeal, Estoppel by Record, Execution of Decrees, Delay in Filing Applications
Source Language
English
Civil Procedure Labour Law Stay of Execution Right of Appeal Estoppel by Record Execution of Decrees Delay in Filing Applications

Case Brief

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Parties

The Governing Body of Co-operative College Moshi

Applicant/judgement Debtor

Prof. Suleiman Chambo

Applicant/judgement Debtor

Joash Mbonea Kavuta

Respondent/decree Holder

Procedural Posture

Miscellaneous Civil Application / Ruling on Preliminary Objections to Application for Stay of Execution

Legal Issues

  1. 1 Whether an order made under Order XXI rule 9 of the Civil Procedure Code, 1966 is appellable
  2. 2 Whether the application for stay of execution is barred by estoppel by record or judgment
  3. 3 Whether the application for stay of execution was filed with unreasonable delay

Ratio Decidendi

An order made by the executing court under Order XXI rule 9 of the Civil Procedure Code, 1966 in execution of a decree is deemed a decree under Section 3 and is appellable under Section 70(1); the application for stay of execution is not barred by estoppel by record as the prior dismissal was on technical grounds and not on merits; the application was not unreasonably delayed as it was filed promptly after the applicants became aware of the outcome of their previous application.

Court Disposition

All preliminary objections overruled with costs; application for stay of execution to proceed on merits.

Orders

  • Application for stay of execution to proceed for hearing on merits.
  • Interim order restraining execution of the decree and lower court order until determination of the application for stay of execution.