Ottoman Bank v. Hanna Ghaui, Civ. Case 63-D-60, 14/8/68, Georges C. J.

Ottoman Bank v. Hanna Ghaui, Civ. Case 63-D-60, 14/8/68, Georges C. J.

Defendant judgment-debter died after a preliminary decree for the sale of mortgaged properties had been given by Court of Appeal. Administratix was appointed two years later. Further details of accounts referring to the mortgaged property were filed. 3 years after the preliminary decree, an application was made to have the adminitrix’ name put on the record. Defendant’s counsel objected on the ground that the limitation period had run, and that the application was not maintainable under s. 95 of the Civil Procedure Code. It was not disputed that the limitation period under order XX11 Rule 4 was 3 months.

            Held: (1) Order XX11 Rule 4 only applies where a right to sue survives death. Once a preliminary decree had been given, that crystallizes the rights of the parties and it cannot be said that a right to sue survives. What survives is a right to the enforcement of the decree. An application could not therefore be brought under Rule 4. (2) Rule 9 sub-rule 2, giving power to set aside an abatement of a suit, did not apply here as there had been no abatement under Rule 4, since it had already been decided that Rule 4 did not apply. (3) The court therefore invoked the inherent power conferred by s. 95 of the Civil Procedure Code to make an order where no alternative remedy was available.