El Maskeri v Valabhdas (C.A. 25/1934.) [1935] EACA 49 (1 January 1935)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P.; ABRAHAMS, C. J. (Tanganyika), and WEBB, J. (Kenya).

ABDULLA BIN AMOUR BIN ABDULREHMAN EL MASKERI, Appellant (Original Defendant No. 1)

MOWJI VALABHDAS, Respondent (Original Plaintiff). C. A. $25/1934$ .

Zanzibar-Decree for Sale of mortgaged property-Execution of decree—Alienation of Land (Restriction and Evidence) Decree, 1934, section 19—Civil Procedure Decree, O. 21, rr. 86, 89.

On 27-11-1933 a Preliminary Decree was made in a mortgage suit brought by the respondent against the appellant. By that decree the appellant was given four months in which to redeem. On 6-4-1934 the Final Decree for sale was made. The sale took place on 7-6-1934 and thereupon, by virtue of O. 21, rr. 86, 89, the respondent was entitled within thirty days to apply to have the sale set aside upon depositing certain sums in Court; the time for so doing expired on 7-7-1934. No such application was made, and the sale was due for confirmation (under r. 89 (1).) on 8-7-1934. On 6-7-1934 the appellant filed an application that in virtue of the provisions contained in section 19 of the Alienation of Land Decree, 1934, the sale of the properties sold in execution of the mortgage decree be not ordered to be made absolute until the lapse of one year. The Alienation of Land (Restriction and Evidence) Decree, 1934, came into force on 7-7-1934; section 19 provides that "no decree or order of a Court for the sale of the land of an Arab or an African in respect of a mortgage entered into or a debt incurred prior to the coming into operation of this Decree shall be executed within one year after the coming into operation of this Decree; provided that time shall not run against any person during this period in respect of any decree or order of Court passed or made in his favour during this period or before the date of the coming into operation of this Decree".

Held (15-2-35).—That, though section 19 may apply to a case where the decree or order for sale has been passed or made before the coming into force of Decree No. 1 of 1934, the test is not the date of the decree or order but the date of execution (i.e. the date of sale).

(Order of Law, C. J., dismissing application affirmed.)

Appellant absent, unrepresented.

Vellani for the Respondent.

JUDGMENT.—The short point for decision in this appeal is whether the learned Chief Justice was correct in holding that the decree had been executed by sale of the immovable property. In our opinion he was. The wording of Order 21, rule 86, of the Civil Procedure Decree makes it clear that where there has been a sale of immovable property execution has thereby taken place even though a person owning or holding an interest in the property may by complying with certain conditions have the<br>Sale set aside. Section 19 of Decree No. 1 of 1934 may apply to a case where a decree or order has been passed or made prior to its enactment; the test is not the date of the decree or order but rather the date of execution. We have thought it desirable to give a decision on this point although from a perusal of Order XLIII it would appear that no appeal lies from the order made in this case.

The appeal is dismissed.