Wakilii

Gihir v Batten (Civil Case No. 1810 of 1953)

East African Court of Appeal · [1954] EACA 84 · 1954 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to amend notice of motion seeking to set aside ex parte judgment
Decision
Application to amend motion granted with costs to respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that a notice of motion may be amended at the hearing in the Court's discretion, by leave or by consent, subject to payment of costs thrown away. Amendment was allowed where the applicant sought to correct reference from ex parte judgment to decree by default, as the remedy sought remained the same. The respondent's limitation defence under Article 164 did not apply where execution was returned unexecuted.

Outcome

Application to amend motion granted with costs to respondent

Facts

The defendant applied under Order 9 rule 24 to set aside an ex parte judgment. In fact, a decree had been extracted, not merely a judgment. At the hearing, the defendant applied for leave to amend the notice of motion to reflect that a decree rather than a judgment was being challenged. The respondent submitted that the Court had no discretion to allow amendment and that the proper course was to dismiss the motion with liberty to re-apply. The respondent argued that amendment would prejudice him by defeating a limitation defence under Article 164 of the Indian Limitation Act 1877. The execution following the decree had been returned unexecuted by the court broker.

Issues

  1. Whether the Court has discretion to allow amendment of a notice of motion at the hearing.
  2. Whether amendment should be refused where the motion incorrectly referred to an ex parte judgment when a decree had been extracted.
  3. Whether amendment would prejudice the respondent by defeating a defence of limitation under Article 164 of the Indian Limitation Act 1877.

Orders

  • Applicant granted leave to amend the motion.
  • Applicant to file a supplementary affidavit referring to the fact of decree.
  • Amendment to be made and affidavit filed within 14 days.
  • Costs of the hearing and of filing and perusing the amendments to be the respondent's in any event.

Rules and key headnotes

Civil Procedure — Amendment of Motions — Discretion of Court
A notice of motion may be amended at the hearing in the discretion of the Court, by leave or by consent, subject in a proper case to payment of any costs thrown away.
Civil Procedure — Amendment of Motions — Limits on Discretion
The Court's discretion to allow amendment of a motion may be refused if the whole substance of the motion is sought to be changed so that some wholly new remedy is to be substituted for the old, but where the remedy sought remains the same both before and after amendment, amendment should be allowed.
Civil Procedure — Limitation — Article 164 Indian Limitation Act 1877
Before Article 164 of the Indian Limitation Act 1877 can be invoked, 30 days must have elapsed after a valid execution of process. Where the defendant was merely served with an attachment of movable property which was returned by the court broker as unexecuted, there was no execution as comprehended by the Article and consequently no limitation.

Legislation cited (4)

  • Civil Procedure (Revised) Rules 1948 Order 50 rule 3
  • Civil Procedure (Revised) Rules 1948 Order 9 rule 24
  • Civil Procedure (Revised) Rules 1948 Order 5 rule 9
  • Indian Limitation Act 1877 Article 164

Cases cited (3)

  • In re King & Co.'s Trade Mark (1892) 2 Ch 462
  • National Timber and Hardware Syndicate v. Arjan Singh, supra, p. 79 (1)
  • National Provincial Bank v Gaunt (1942) 2 AER 112

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Gihir v Batten (Civil Case No. 1810 of 1953) [1954] EACA 84 (1 January 1954)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.