[1948] EACA 52

## ORIGINAL CIVIL

Before Modera, Ag. J

## OL'KALOU STORES, Plaintiffs (Judgment Creditors) $\mathbf{v}$ .

$\mathcal{M}(\mathcal{M})$

## J. M. DANIEL, Defendant (Judgment Debtor) Civil Case No. 7 of 1945, Nakuru District Registry

Practice—Civil action—Judgment by consent before Judge—Application for execution by personal arrest—Order XIX, rule 8—District Registrar purporting to sign decree—Decree subsequently signed by Judge—Effect of document signed by District Registrar—Procedure—Interest—Meaning of "further interest", section 26, Civil Procedure Ordinance-Failure to comply with Order XIX, rule 8-Power to reject application for execution-Order XIX, rule 14-Courts' inherent power—General power to amend—Sections 99 and 101, Civil Procedure Ordinance—Costs.

The plaintiffs instituted proceedings against the defendant on 18th September, 1945, and on 25th November, 1946, judgment was entered, by consent, for the plaintiffs for Sh. 1,500; after taxation the costs amounted to Sh. 610/50.

On 11th March, 1948, before any decree had been signed, an application for execution was filed on behalf of the plaintiffs. On 12th March, 1948, the District Registrar, Nakuru, purported to sign a decree for Sh. 2,110/50 and the application for execution was served on the defendant on 16th March. After some. correspondence a decree for that amount was signed by a Judge of the Supreme Court on 6th April. The execution proceedings came before the Court on 21st June, 1948, and were contested on behalf of the defendant on the grounds that (a) the decree signed by the District Registrar was ultra vires and (b) there could not be two decrees in the one suit and that the plaintiffs should have taken steps to expunge the decree of the District Registrar before seeking a properly signed decree. The Court gave its ruling.

Held (28-6-48).—(1) That the consent judgment was recorded by a Supreme Court Judge, and the District Registrar neither "made" nor "passed" a decree, but merely signed a document which he thought constituted a decree.

Chandubhai Hathibhai Patel v. George Taylor 10 E. A. C. A. 1 cited and distinguished.

(2) That the actual signing on the form of a decree by the District Registrar was an administrative act which he erroneously committed, and as the document was of no value and a nullity in the proceedings it was unnecessary to move the Court to expunge it.

(3) That the only decree was that made by the Supreme Court Judge on 6th April, 1948. $\mathcal{A}_{\mathrm{max}}$ $\mathcal{L}^{\pm}$ $\mathcal{L}_{\mathcal{A}}$

(4) That regarding the claim for interest in the application, as section 26, Civil<br>Procedure Ordinance refers to "further interest", which envisages previous interest, and<br>interest was no part of the consent judgment, "fur not in point.

(5) That as the application for execution proceedings was filed before the decree<br>was signed, it did not comply with Order XIX; rule 8, of the Civil Procedure Rules, but<br>following sections 99 and 101 of the Civil Procedure - be rejected under Order XIX, rule 14.

Application for execution allowed on amendment of the decree by deletion of claims for interest.

Plaintiffs ordered to pay costs of the application.

Upadhyaya for Plaintiffs (Judgment-creditors).

Lean for Defendant (Judgment-debtor).

RULING.—In this case the original plaint was filed on 18th September, 1945. After various applications and amendments to pleadings the defendant on 25th November, 1946, and when the case had been called for hearing, consented to judgment against him for "Sh. 1,500, costs in Sh. 300 and costs of an application to strike out an amended plaint to be taxed by the Registrar". These latter costs were taxed at Sh. 310/50 on 24th February, 1948. I find no reason assigned for the delay in the taxing of this bill, which was apparently only filed by the plaintiffs' advocate on 18th November, 1947.

On 11th March, 1948, and before any decree had been signed the advocate for the plaintiffs filed an application for execution by personal arrest and detention of the judgment-debtor in prison in default of payment. On 12th March, 1948, the District Registrar signed a document which he thought to be a decree for Sh. 2,110/50 and on 16th March, 1948, the plaintiffs' application for execution was served on the defendant. Correspondence ensued culminating in the signing of a decree for Sh. 2,110/50 on 6th April, 1948, by Mr. Justice Bourke, who had originally entered the consent judgment on 25th November, 1946. The application for execution is now before me for decision. It is contested by the defendant on the grounds that the decree signed by the District Registrar was ultra vires, that there cannot be two decrees in the same suit and that the plaintiffs should have taken steps to expunge the decree of the District Registrar before seeking to obtain a properly signed decree. The advocate for the plaintiffs supports his application and asks that if necessary the Court will at this stage amend the form of his application.

It might conceivably be argued that inasmuch as there was a consent judgment the Registrar was empowered himself to enter judgment and to sign the decree which follows under section 25, Civil Procedure Ordinance, but Order XLVI, rule 2, contains the words "on application in writing". Whether in the particular circumstances of this case the lack of an application in writing would have deprived the District Registrar of his powers of entering judgment and of signing the decree is a question which I do not feel called upon to decide for the reasons which I set out below: -

My attention has been drawn by Mr. Lean to the case of Chandubhai Hathibhai Patel v. George Taylor E. A. C. A. Reports, Vol. X at page 1. In that case the District Registrar pronounced a final judgment and on that final judgment a decree followed: in other words the District Registrar entered a judgment and passed a decree. The learned Judges in the Court of Appeal held that the District Registrar had no jurisdiction to enter judgment in the circumstances of the case and the appeal was allowed. The facts in that case were very different to those in the case at present before me, where judgment—a consent judgment—was recorded by Mr. Justice Bourke and all that the District Registrar did was to sign the decree. I have paid very particular attention to the words used by Acting Chief Justice Mark Wilson in the Court of Appeal case, which words are reported at page 4 of Volume X, E. A. C. A. Reports. The learned Judge said:-

"In my opinion, therefore, Order XLIV, rule 7, gives no right of appeal to the Supreme Court in such a matter as this and appeal therefore lies to this Court under section 66, I may add that I can see no substance whatever in the somewhat specious argument that if the decree was made by the District Registrar without jurisdiction appeal does not lie to this Court under section 66 because the decree is invalid and therefore no decree at all. It purports to be a decree, is made by an officer of the Court who is entitled in certain circumstances to pass decrees, and is valid unless and until it is set aside by an appellate Court."

Those words in obiter appear at first sight to be very far-reaching, but I would place emphasis on the words which I have underlined. In the present case the District Registrar neither "made" nor "passed" a decree. All he in fact did was to sign a document which he thought would constitute a decree. In other

words the District Registrar did not pass not enter judgment and he took no decision: the actual signing on the form of a decree was an administrative act which he erroneously committed and which purported to usurp the province of the learned Judge who had passed and entered: a consent judgment, upon which a decree would automatically follow.

In the result I hold that there was no need to move any Court to expunge the document which was and is of no value but merely a nullity in the proceedings. Consequently there is only one decree—that made by Mr. Justice Bourke on 6th April, 1948, and it is that decree which the plaintiffs by their application for execution filed on 11th March, 1948, are now seeking to execute.

Now, in this application the plaintiffs have made a claim for interest. Interest was not part of the consent judgment. It has, however, been urged that section 26 (2) of the Civil Procedure Ordinance is applicable to this case. I am unable to agree; the sub-section in question refers, as does sub-section (1), to "further interest" which in my view envisages previous interest: no such previous interest was ordered and I do not consider that "further interest" in the circumstances is in point. It follows that the execution of the decree in this case must be for Sh. 2,110/50 and no more, and it further follows that this application, which incidentally was filed before any decree had been signed, does not comply with the requirements of Order XIX, rule 8, of the Civil Procedure Rules.

Bearing all these matters in mind I now have to decide as to the appropriate orders I should make. I could by virtue of Order XIX, rule 14; reject this application; such an order would only involve the parties in extra expense and further delay and I have been reminded of sections 99 and 101 of the Civil Procedure Ordinance. $\mathcal{C}^{\infty}$

I propose to allow the present application which has been served on the defendant to hold good as if filed and served subsequent to the signing of the decree made by Mr. Justice Bourke on 6th April, 1948, but it will be amended by deleting all reference to the claims for interest. The amendment will be signed by me and the application will then proceed in the ordinary way. An amendment of a somewhat similar nature was made in Civil Case No. 4 of 1943 in this Registry.

It remains to consider the question of costs of this application. The case of the defendant, who in November, 1946, consented to judgment and has paid nothing to the plaintiffs, has little merit. On the other hand the plaintiffs have largely brought this trouble on their own heads, partly by their delay in obtaining a decree, and partly by instituting the present application erroneously. They have sought the assistance of the Court to rectify the matter. The costs of this application will be taxed as soon as possible by the District Registrar and will be paid by the plaintiffs by being deducted from the decretal amount $\mathcal{L} \times \mathcal{L}$ of Sh. $2,110/50$ . $\mathcal{A} = \{1,2,3,4\}$ $\mathcal{L}^{\mathcal{A}}(\mathcal{A},\mathcal{A})$


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