Wakilii

Koorjee v Butta (Civil Case No. 175 of 1940)

East African Court of Appeal · [1940] EACA 45 · 1940 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance mortgage suit with preliminary objection to procedure
Decision
Preliminary objection dismissed; plaintiff permitted to proceed by ordinary action

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a mortgagee seeks a personal decree against the mortgagor in addition to other mortgage remedies, the suit must be instituted by ordinary action and not by originating summons. Order 34 rule 3A does not permit personal decrees on originating summons because such relief is not among the specified remedies and is not of the same nature as those enumerated.

Outcome

Preliminary objection dismissed; plaintiff permitted to proceed by ordinary action

Facts

The plaintiff mortgagee instituted a mortgage suit by plaint seeking accounts, sale of mortgaged property, and a personal decree against the mortgagor in the event of deficiency. The defendant raised a preliminary objection that all proceedings to enforce mortgage security must be by originating summons under Order 34 rule 3A of the Civil Procedure Rules, not by ordinary action. The defendant argued that the reliefs specified in rule 3A were illustrative only and that the court had power to grant personal decrees on originating summons.

Issues

  1. Whether a mortgagee seeking a personal decree against the mortgagor must proceed by ordinary action or may proceed by originating summons under Order 34 rule 3A of the Civil Procedure Rules.

Orders

  • Preliminary objection dismissed.
  • Mortgagee may proceed by ordinary action where personal decree is sought.

Rules and key headnotes

Civil Procedure — Mortgage Suits — Procedure for Seeking Personal Decree
Where a mortgagee prays for a personal decree against the mortgagor in addition to other mortgage remedies, the suit must be instituted by ordinary action and not by way of originating summons under Order 34 rule 3A of the Civil Procedure Rules.
Civil Procedure — Originating Summons — Scope of Relief Under Order 34 Rule 3A
Order 34 rule 3A of the Civil Procedure Rules specifies the reliefs available on originating summons in mortgage matters as sale, foreclosure, delivery of possession by mortgagor, redemption, reconveyance, and delivery of possession by mortgagee. A personal decree for payment of the mortgage debt is not among the specified reliefs and cannot be obtained by originating summons.
Statutory Interpretation — Ejusdem Generis Rule — Inapplicability Where General Words Precede Specific Terms
The ejusdem generis doctrine applies only where a general word follows one or more specific terms, not where the general words precede the specific enumeration. Relief by way of personal decree is not in the same genus or category as the other reliefs specified in Order 34 rule 3A.

Legislation cited (1)

Cases cited (2)

  • Redditch Benefit Building Society v Roberts [1940] 1 Ch 415
  • King v George (1886) 5 Ch D 27

Full judgment

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

Koorjee v Butta (Civil Case No. 175 of 1940) [1940] EACA 45 (1 January 1940)
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.