[1929] EACA 20

[1929] EACA 20

The Court held that the order made on objection proceedings under Order 36, Rule 8 is not a decree as defined in Section 2(4) of the Civil Procedure Ordinance. Such proceedings are summary in nature and do not constitute a suit, nor do they resolve matters in controversy in the suit itself. Order 40, Rule 1 does not list such orders as appealable, and an appeal would only lie if leave had been granted by the court making the order or the appellate court. Since no leave was obtained, the appeal does not lie and must be dismissed. The proper remedy for the appellants is to file a suit under Order 19, Rule 60 if they wish to challenge the order.

Citation
[1929] EACA 20
Parties
Appellant: Ratanbai Miyaji; Respondent: Essufali Gulamhusein
Court
East African Court of Appeal
Jurisdiction
Uganda
Judgment Date
1 January 1929
Case Number
C.A. 25/1929.
Procedural Posture
Civil Appeal / Preliminary Objection on Right to Appeal
Outcome
Appeal dismissed for want of leave to appeal.
Judges
Barth, C.J (Kenya), Doorly, J (Zanzibar), Gower, J. (Tanganyika)
Legal Topics
Leave to Appeal, Objection Proceedings, Attachment Before Judgment, Definition of Decree
Source Language
English
Civil Procedure Leave to Appeal Objection Proceedings Attachment Before Judgment Definition of Decree

Case Brief

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Parties

Ratanbai Miyaji

Appellant

Essufali Gulamhusein

Respondent

Procedural Posture

Civil Appeal / Preliminary Objection on Right to Appeal

Legal Issues

  1. 1 Does an order made on objection proceedings under Order 36, Rule 8 constitute a decree as defined in Section 2(4) of the Civil Procedure Ordinance?
  2. 2 Is such an order appealable without leave under Order 40, Rule 1?
  3. 3 Do the rules governing objection proceedings on attachment before judgment differ from those on attachment in execution of a decree?

Ratio Decidendi

The Court held that the order made on objection proceedings under Order 36, Rule 8 is not a decree as defined in Section 2(4) of the Civil Procedure Ordinance. Such proceedings are summary in nature and do not constitute a suit, nor do they resolve matters in controversy in the suit itself. Order 40, Rule 1 does not list such orders as appealable, and an appeal would only lie if leave had been granted by the court making the order or the appellate court. Since no leave was obtained, the appeal does not lie and must be dismissed. The proper remedy for the appellants is to file a suit under Order 19, Rule 60 if they wish to challenge the order.

Court Disposition

Appeal dismissed for want of leave to appeal.

Orders

  • The appeal is dismissed with costs.