JUDGMENT OF DUFFUS, P.
 I have had the advantage of reading the draft judgment of Hustafa, J.A.
The issue started as a claim by the respondents as landlords of premises
known as the New Palace Hotel to recover possession and mesne profits from
the two appellants.
 On the 24th March, 1971, the appellants applied for an adjournment of
the hearing pending the hearing of an appeal. Both parties appeared and
after some discussion Biron, J. before whom the application was heard,
granted the adjournment on terms.
The Order stated
“ORDER.” Hearing adjourned pending outcome of the appeal to the Court of
Appeal for East Africa - In the mean¬time without prejudice to the right of
the parties the defendants to payoff towards the arrears of rent accrued,
Shs.25, 000/- by the end of this month ¬31st March, 1971 and Shs.25, 000/-
by the end of April, 1971 and thereafter to pay the current rent accruing
until the determination of the suit. Also, if any instalment is in arrear by
more than 10 (ten) days, the defendant to hand over immediate possession.
"There has been some argument in the subsequent proceedings and before us as
to whether this was a consent order or not.
 This does not, however, really arise or matter both parties accepted
this order as a binding order of the court and there has been no appeal or
attempt to set it aside. The next step Bas that on the 14th May, 1971, a Mr.
Remtulla, acting on behalf of the respondent company, filed an affidavit in
which he averred that the terms of the order of the 24th March, 1971 had not
been carried out. In his affidavit he applied for an order for possession of
the premises and for the attachment of the appellants goods and chattels.
 This affidavit came before Biron, J. on the 15th May, 1971, who treated
the affidavit as an application and ordered that an order for possession and
also a warrant to attach the moveable property issue. Then on the 18th May,
1971, the appellants filed a chamber application asking the court to rescind
the order for possession and seizure of the goods and also to stay the court
broker from acting on these orders.
 This application was made under section 38 and/or section 78 and/or
section 95 of the Civil Procedure Code and was supported by an affidavit by
Mr. Peera of the appellant’s advocates.
 It is to be noted that there was no attack or complaint against the
order at possession made on the 24th March, 1971, and that the only
complaint then was that there had been no written application for the
eviction order to issue. The appellants brought this application ex parte
before the Chief Justice on the 18th May, 1971.
 He heard argument from Mr. Peera on that date and granted a stay of
execution. The matter again came before the Chief Justice on the 21st May,
1971, when both the appellants and the respondents were represented and
after hearing arguments from both sides the Chief Justice rejected the
application and I would here set out his com¬paratively short Order
"ORDER. From what has been said by the learned counsel on both sides and
upon reading the order of my brother, Biron, J. recorded on 24.3.1971, on
the consent of the parties it now seems to me that the application for stay
of the exe¬cution against the defendant is without merit and unjustified. In
making the order for stay of execution on 18.5.71 I had considered the
question of owner¬ship following the acquisition of the premises by the
Government. The argu¬ments of learned counsel clearly show that the issue of
ownership is separate and distinct from the one concerning the claim of the
plaintiff against the defendants. Since the defendants committed a breach of
the consent order by de¬fault of payment of the 2nd instal¬ment of
Shs.25,000/- on 30.4.1971 Biron, J. was justified in ordering the execution
to issue in pursuance of the consent order and as such give possession of
the premises to the plaintiff. Quite clearly the defendants cannot have it
both ways and I am not therefore inclined to entertain the application for
re¬view of Biron, J's order. Full reasons for my decision will be given
 This was on the 21stMay, 1971, but in the meantime, on the 20th May,
1971, the appellants' advocates filed yet another application, very similar
to the first application. This application, however, asked that the order
for possession only be
(a) Discharged or rescinded, or
(b) Be reviewed or set aside
 and was, in this case, made not only under sections 38, 78 and 95 of the
Civil Procedure Code but also under section 19(5) of the Rent Re¬striction
Act. In fact, section 19(5) of the Rent Restriction Act would appear to have
no application to the facts in this case so that in effect this application
was also made under the three sections of the Civil Procedure Code.
 Although this application was filed a day before the hearing by the
Chief Justice it does not appear to have been brought to his attention.
 We then had the ruling of the Chief Justice on the 21st May, 1971, (supra)
and on the 11th June, 1971, the matter was again brought before Biron, J.
 The application before Biron, J. was apparently based on the
application filed on the 20th May, 1971, but basically both the application
before the Chief Justice and that before Biron, J. were similar and sought
to set aside the order for possession made by Biron, J. on the 15th May,
1971. Both the appellant and the respondent were represented at the second
hearing and in their submissions it also now appeared that the plaintiff/respondents
had already re- entered into possession of the premises and were running the
business since the 18th May, 1971. Biron, J. refused to make the order. He
“Although applicant is not undeserving of sympathy, as indicated I cannot
interfere with the order of the Chief Justice rejecting the application for
review. And as for a stay of execution, apart from the fact that the Chief
Justice would also appear to have refused a stay, I find Mr. Tarimo’s
submission that the Court can not now grant unassailable. I therefore must
as I do reject the application in toto.”
 This appeal is against the order of Biron, J. rejecting the application.
The first issue on this appeal is whether the order of the Chief Justice
dated 21st May, 1971, was made without jurisdiction and therefore a nullity.
If that order was a nullity then clearly had already re-entered into
possession of the premises and running the business since the 18th May,
1971.Biron, J. refused to make the order.
 He said
“Although applicant is not un¬deserving of sympathy, as indicated I cannot
interfere with the order of the Chief Justice rejecting the appli¬cation for
review. And as for a stay of execution, apart from the fact that the Chief
Justice would also appear to have refused a stay, I find Mr. Tarimo's
submission that the Court cannot now grant a stay unassailable. I there¬fore
must as I do reject the application in toto.”
 This appeal is against the order of Biron, J. rejecting the application.
The first issue on this appeal is whether the order of the Chief Justice
dated 21st May, 1971, was made without jurisdiction and therefore a nullity.
If that order was a nullity then clearly this appeal must be allowed and the
application referred back to Biron, J. for further hearing.
 If, however, the order made by the Chief Justice was within his
jurisdiction and therefore not a nullity, then the question is whether Biron,
J. was correct in refusing to adjudicate on a matter already dealt with by
the Chief Justice. Here the principles of res judicata as set out in section
9 of the Civil Procedure Code, would apply.
 The first issue then is, had the Chief Justice jurisdiction to hear the
chamber summons on the 18th May, 1971? This application was made by the
appellants under three separate sections of the Civil Procedure Code but in
effect it was a simple application to set aside Biron, J's order of the 15th
 The application could have been made under any of the three sections:
that is sections 38, 78, and 95 of the Civil Procedure Code but the
appellant chose to make the application under all three sections.
 There appears to be no dispute as to the Chief Justice's jurisdiction
to act under section 38 or section 95 of the Civil Procedure Code but it is
submitted that the Chief Justice had no jurisdiction to act under section
78, the review section of the Civil Procedure Code, as Biron, J., the judge
who made the order for the writs to issue was available and should, under
mandatory provisions of rule 5 of Order 42 have heard the application. I
will consider these three sections. The question arises whether if, in fact,
the Chief Justice had no jurisdiction to act under section 78 he would still
have had jurisdiction to act and hear the application under either or both
of the other two sections.'
 The relevant portion of section 38 of the Civil Procedure Code states
"(1) All questions arising between the parties to the suit in which the
decree was passed, or their representatives, and relating to the execution,
dis¬charge or satisfaction of the decree, shall be determined by the court
executing the decree and not by a separate suit. "
 'Court' here means the High Court and there appears to be no question
but that the Chief Justice had jurisdiction, as a judge of the High Court,
to act under this section.
 This section does not require that the application be heard or dealt
with by the individual judge who passed the decree or ordered the execution.
The appellants' main ground for the recision of the order of possession was
that the application for execution was not in writing in accordance with
rule 10(2) of the Civil Procedure Code and accordingly they argued that the
order for possession was a nullity.
 The order of Biron, J. of the 24th March, 1971 would in my view have
been a "decree" within the meaning of section 3 of the Civil Procedure Code,
but if not a decree then it was an "order” within the meaning of that
section and by virtue of section 31. The provisions of the Code relating to
the execution of decree are, as far as applicable, deemed to apply to the
execution of orders.
 This would therefore appear to be a proper application for
deter¬mination under section 38 of the Civil Procedure Code and in my view
the court, presided over by the Chief Justice, had jurisdiction to hear the
 Section 95 preserves "the inherent power of the court to make such
orders as may be necessary for the ends of justice or to prevent abuse of
the process of the court". Here again I think that it is unquestionable but
that the Chief Justice would have had jurisdiction to hear this application
acting under his inherent powers as preserved by section 95 but, of course,
it is another matter as to whether he would have granted any relief in the
exercise of his inherent jurisdiction.
 Then there is the reviewing section, section 78 here again it is not in
dispute that the application for review should have been heard by Biron, J.
by virtue of the express and mandatory provisions of Order XLII, rule 5(1)
as he had made the order com¬plained of and was still attached to the court
and available to hear the application for review.
 Mr. Lakha, for the respondents however pointed out that it was the
appellants themselves who brought this application before the Chief Justice
and caused him to adjudicate and determine the matter and further that his
hearing of the application was completed without objection by either side.
 He submitted that the hearing by the Chief Justice was only an
irregularity in pro¬cedure and was not a case of a complete lack of
jurisdiction. He submitted that the High Court did have jurisdiction and
that the Chief Justice could properly have heard the application if Biron,
J. was not still attached to the court when the application as presented.
This Court must presume that the appellants, or at any rate their legal
advisers, knew of the provisions of rule 5 and it does seem to be most
unfair and inequitable that the appellants should seek the ruling of the
Chief Justice and then, when this ruling is unfavourable, turn around and
endeavour to have it set aside and obtain another hearing on grounds which
have been of their own making.
 All the courts in Tanzania are created by statute and their
jurisdiction is purely statutory. It is an elementary principle of law that
parties cannot by consent give a court jurisdiction which it does not
possess. Mr. Lakha, however, argues that in this case the High Court did
have jurisdiction to hear the application under all three sections of the
Civil Procedure Code relied on by the appellants and that the directions
under O.XLII R. 5 (1) as to the hearing of the application to review would
be only a procedural matter, a breach of which would be an irregularity
cureable by consent or acquiescence of the parties and did not deprive the
High Court of jurisdiction.
 There is some authority in support of this proposition; thus, I would
refer to the majority judgment of the Court of Appeal in England in the case
of Shrager v. Basil Dighton Ltd. (1924) 1 K.B. 274, where it was held that
an irregularity in the appointment of an Official Receiver to hear a High
Court case did not render the trial a nullity but could be waived by the
 In delivering his judgment Bankes, L.J. said at p.281
"In my opinion the Rules of Court relating to the distribution of business,
whether among the Official Referees or the judges of the Chancery Division,
are rules of procedure intro¬duced for obviously good reasons, but they do
not touch the question of juris¬diction at all.”
 And the following short extract from the judgment of Younger, L.J.
would seem appropriate to this case.
"The judgment was not in his favour, and he now, any imputation of bad faith
being disclaimed, applies to have that judgment set aside on the ground only
of an irregularity in the proceedings of which he was aware, I think, all
through, but certainly long before they were con¬cluded. In my judgment
elementary justice requires that such an application should fail. "
 There are other cases on this subject but I do not find it necessary to
make a definite ruling on this aspect of the appeal as in my view the Chief
Justice clearly had jurisdiction to hear this application under the
provisions of the two other sections relied on by the appellants; that is
section 38 and 95 of the Civil Procedure Code.
 The provisions of section 38 are particularly appropriate to the facts
complained of in this application. The Chief Justice had all had all the
facts before him, including the fact that the Government had recently
acquired these premises and as I have mentioned earlier there was the fact
that the original order for possession made by Biron, J. on the 24th March,
1971, was not questioned. There was also the fact that the affidavit
previously referred to made by Mr. Remtulla on the 30th May, 1971, did, on
the face of it, appear to be an application in writing sufficient to comply
with the require¬ments of rule 2 of the Civil Procedure Rules.
 Although it is not necessary to consider the correctness of the Chief
Justice's ruling I must say, with respect, his order appears to have been
entirely correct and equitable in the circumstances of the case. The fact
that matters, however, is that the Chief Justice acted with jurisdiction
when he made his order of the 21st May, 1971.
 The main question on this appeal was, therefore, was whether Biron, J.
was correct in refusing to make an order on the application before him. Mr.
Dastur, for the appellants, referred to the application before Biron, J. as
being the same application which came before the Chief Justice.
 With respect, this is not altogether clear as the appli¬cation before
the Chief Justice would appear to have been that made on the 18th May, 1971,
whilst that before Biron, J. appeared to be that made on the 20th May, 1971.
In fact, both applications dealt with the same issue, the setting aside of
the order for possession of the premises, and although there were some
differences between the two applications and the affidavits in support, the
issues in each application appeared to have been identical and in each case
the appellants relied on the same three sections - sections 38,78 and 95 of
the Civil Procedure Code.
 The issue was finally deter¬mined by the Chief Justice in his decision
of the 21stMay, 1971, and in my view the principles of res judicata apply.
Very little argu¬ment was raised before us on this question and the main
question was whether the Chief Justice had jurisdiction to hear the first
 If he did, then I gather it was accepted that Biron, was correct and
this appeal would be dismissed.
 I agree that this is the correct position here. The issue had, in fact,
already been determined and dismissed by the learned Chief Justice and Biron,
J. had no further jurisdiction to decide the same issue on the same facts. I
therefore agree with the order made by Biron, J. and I would dismiss this
 As Mustafa and Lutta, JJA also agree, the appeal is dismissed with
costs to the respondents.
 The appeal was first argued before the court on 26.10.71 when judgment
was reserved. When considering our judgment we felt we needed further
argument on the following point
"Whether the application before Saidi C.J. and heard by him on 21.5.71 could
be and/ or was dealt with as a question relating to the execution, discharge
or satisfaction of a decree in terms of section 38 of the Civil Procedure
Code and was thus within his competence and jurisdiction."
 The Court then set the appeal down for further argument on 7.2.72 when
the same counsel who had earlier appeared addressed us. We are indebted to
them for their assistance.
 The facts leading up to this appeal are briefly as follows. The
respondents herein had filed an action against the appellants for possession
of certain premises known as the Palace Hotel on the ground that the lease
under which the appellants held the premises had expired, and for mesne
 The appellants claimed interalia that they had the right to continue in
occupation as statutory tenants. The issue whether the premises in question
were subject to the Rent Restriction Act was crucial, and the issue had been
referred to this Court in Misc. Civil Appeal 16 of 1970.Before the decision
of this Court was arrived at on 24th March, 1971 the appellants applied to
Biron, J. for an adjournment of the action, pending the decision of this
Court as to whether the subject premises were caught by the provisions of
the Rent Restriction Act.
 The respondents raised no objection to the adjournment provided the
appellants "pay the arrears of rent”. Biron, J. granted the adjournment but
also ordered the appellants to payoff the "arrears of rent" by instalments
of Shs. 25,000/¬at the end of March and at the end of April, and "if any
instalment is in arrear by more than ten days, the defendant (i.e. the
appellants) to hand over immediate possession".
 This was not a consent order. It would seem Biron; J’s order for
adjournment must have been made under Order 17 rule 1 of the Civil Procedure
Rules. It seems to me that when an order granting an adjournment is made,
the Court can only grant to the other party costs of and occasioned by the
adjournment and cannot, as was done here, unless by consent, on default pass
a decree for possession without taking evidence. It is perhaps doubtful if
tile order of Biron, J. on 24.3.71 was made with jurisdiction, but as it was
not appealed, I will not pursue the matter.
 The appellants paid the sum of Shs. 25,000/- due at the end of March.
On 13.5.71 a director of the respondents filed an affidavit deponing that
the appellants had failed to pay the sum of Shs. 25,000/- due at the end of
April and prayed for an eviction order to issue and for possession of the
premises. On 15.5.71 Biron, J. made an exparte order granting the prayers of
the respondents. On 18.5.71 the appellants filed an application to rescind
Biron, J's order of 15.5.71.The application came before Saidi C.J. On
21.5.71 the application, was argued by counsel for both the parties before
 The appellants had filed an affidavit stating (1) that there was an
error in procedure as there3as there was no written application for
execution and it was not in proper form and (2) that by virtue of the
Acquisition of Buildings Act No. 13 of 1971 the suit premises were vested in
the Registrar of Buildings on or about 23.4.71 and that they had paid the
rent for April to the said Registrar of Buildings in terms of the said Act.
 Saidi C.J. who was under the impression that the adjournment order of
Biron, J. of 24.3.71 was a consent order declined “to entertain the
application for review of Biron, J's order" of 15.5.71.
 On 11.6.71 the appellants renewed their application for rescission of
the order of 15.5.71 before Biron, J.. Biron, J rejected the application on
the ground that he could not interfere with the order of Saidi C.J. who had
already rejected the said application. From the refusal of Biron, J. the
appellants appeal to this Court.
 The main ground of appeal is that Biron, J. was wrong in refusing to
review or rescind or set aside his own order of 15.5.71 on the ground that
he could not interfere with the order of Saidi C.J. of 21.5.71. Mr. Dastur
for the appellants has submitted that Saidi C.J.'s order of 21.5.71 was made
without jurisdiction and was null and void. Mr. Dastur admitted that the
appellants themselves were wrong to have in the first place moved Saidi C.J.
for a review of the order of Biron, J., and the proceedings before Saidi
C.J. were incompetent and misconceived. He submitted that an application for
review of an order must be heard by the same judge who had made the order.
 He referred to Order 42 rule 1(1) and 5(1) of the Civil Procedure Rules
"1. (1) any person considering himself aggrieved¬
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed, and who, from the
discovery of new and important matter or evidence and which, after the
exercise of due diligence, was not within his knowledge or could not be
produced by him at the time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the record, or for
any other sufficient reason, desires to obtain a review of the decree passed
or order made against him, may apply for a review of judgment to the Court
which passed the decree or made the order.
5. (1) Where the judge or judges, or any of the jud68s, who passed the
decree or made the order, a review of which is applied for, continues or
continue attached to the Court at the time when the application for rovi0w
is presented, and is not or are not precluded by absence or other cause for
a period of six months next after the application from considering the
decree or order to which the application refers, such Judge or Judges shall
hear the application, and no other Judge or Judges of the Court shall hear
 Mr. Dastur submitted that the only judge who had jurisdiction to hear
the application for review in the circumstances was Biron, J. as he was
still attached to the Court, and was not precluded by absence or other cause
for a period of 6 months next after the application from considering the
order to which the application referred.
 In the commentaries by Chitaley in relation to the corresponding
provisions of the Indian Civil Procedure Code, it was stated that the
application for review must be heard by the same judge who made the order.
 Mr. Lakha for the respondents conceded that if the application was for
review it had to be heard by the same judge who made the order. However, he
submitted that the application for review had to be submitted to the Court
which made the order, in this case the High Court. The High Court had
jurisdiction to entertain the said application, only the wrong judge had
 Since the Court had jurisdiction the erroneous action of such Court in
the exercise of that jurisdiction was merely an irregularity in procedure
and did not affect the jurisdiction of Saidi C.J. The order of Saidi C.J.
was not therefore null and void. The appellants themselves had moved Saidi
C.J. to hear the application, and having done so, cannot now be heard to
 Order of 24.3.71 and was therefore a matter relating to the execution,
discharge or satisfaction of a decree and was within the provisions of
section 38 of the Civil Procedure Code. Even if the order of 15.5.71 was
irregular, and such irregularity amounted to a nullity, such a question
would have to be determined by an executing court in terms of section 38 of
the Civil Procedure Code; see for instance Bhan Kumar Chand and another
v.Lachmi Kanta and others AIR (1941) Patna 566.
 Mr. Dastur has submitted that the order of Biron, J. dated 24.3.71 was
not an 0xecutable order or decree in terms of section 3 of the Civil
Procedure Code and that the order of Biron, J. dated 15.5.71 could not
relate to execution proceedings as execution proceedings pre-suppose a valid
and executable order or decree.
 As I have said the order of 24.3.71 was not challenged and must be
considered as valid, and in my view that was an executable decree within the
meaning of section 3 of the Civil Procedure Code.
 It follows that the order of 15.5.71 related to execution proceedings
and came within the provisions of section 38 of the Civil Procedure Code. In
the circumstances Saidi C.J. had jurisdiction to make the order he did and
Biron, J .was correct in refusing to interfere with the order of Saidi C.J.
 I would dismiss the appeal with costs
 The facts out of which this appeal arises) the issues and the grounds
of appeal are set out fully in the judgments prepared by the learned
President and Mustafa, J.A. which I have had the advantage of reading and it
is unnecessary for me to repeat them.
 Mr. Peera (counsel for the applicant then) is shown on the record as
having stated th2t he made his application to the High Court under sections
38, 78 and 95 of the Civil Procedure Code 1966.
 Section 38 is concerned with the determination, by the court executing
the decree, of questions arising between the parties to the suit in which
the decree was passed, and relating to the execution, satisfaction or
discharge of the decree. Thus such questions must, firstly, relate to the
execution of the decree and not to its validity, and secondly) must be
decided in the execution proceedings.
 Section 78 of the Civil Procedure Code 1966 provides as follows:¬
"Subject as aforesaid any person considering himself aggrieved¬
(a) By a decree or order from which an appeal is allowed by this Code, but
from which no appeal has been preferred or
(b) By a decree or order from which no appeal is allowed by this Code, may
apply for a review of judgment to the court which passed the decree or made
the order; and the court may make such order thereon as it thinks fit.
Order 42 rule 1 provides for a review of judgment to the court which passed
the decree or made the order. Rule 5 of this Order provides that:-¬
"Where the Judge or Judges, or anyone of the Judges, who passed the decree
or made the order, a review of which is applied for, continues or continue
attached to the court at the time when the application for a review is
presented, and is not or are not precluded by absence or other cause for a
period of six months next after the application from consider¬ing the decree
or order to which the application refers, such Judge or Judges or any of
them shall hear the application and no other Judge or Judges of the court
shall hear the same."
 The combined effect of section 78 and Order 42 rules 1 and 5 is to give
entitlement to an aggrieved person to apply to the judge, who passed the
decree or made the order, for a review of judgment.
 In my opinion the word "Court” which appears in both section 78 and
Order 42 rule 1 must mean “judge" as used in rule 5 Order 42.
 In other words, an application for review under section 78 and Order 42
rule 1 is required to be made to the judge who passed the decree or made the
 Biron, J., ordered, on 24th March, 1971, the appellants to pay
sh.25,000/- by the end of 31st March, 1971 and shs.25,000/¬ by the end of
April 1971 and thereafter to pay the “current rent accruing until the
determination of the suit" and also that if any instalment was in arrear by
more than 10 days the appellant was to hand over immediate possession.
 This was an order within the meaning of "order" under section 3 of the
Civil Procedure Code
 1966. Then on 15th may, 1971 he ordered as follows:-¬
"I. Leave for an eviction order granted;
2. Leave to attach all the moveable properties described in the affidavit is
3. Order for possession be issued forthwith; and
4. Warrant to attach all the moveable properties be issued.
This was an order within the meaning of "order” under section 3 and was
merely carrying into effect the order of 24th march 1971 by Biron, J., as
the appellants were in arrears by more than 10 days.
 In other words, it was an enforcement order.
 It was in execution of the order made on 24th March, 1971 and by reason
of section 31 of the Civil Procedure Code 1966, the provisions of the Civil
Procedure Code relating to execution of decrees, would apply to it.
 In their application of 18th may, 1971 for a rescission of the order of
15th may, 1971 the appellants stated, as per Mr. Peera 's affidavit of 18th
may and Pyarali Jaffer mawji' s affidavit of 20th May 1971, interalia,that
the (plaintiffs) respondents did not file a written application for the
execution of the order of 24th March, 1971 as required by Order 21 rule 10
of the Civil Procedure Rules and that the appellants had been accepted by
the Registrar of Buildings (to whom the rent for April had been paid) as his
tenants and that they (the appellants) were entitled to the occupation of
the suit premises and therefore the respondents we e not entitled to
 It seems to me that Mr. Peera's application of 18th May, 1971 was
against the procedure for the execution of the order and an objection to
attachment of the property, or, rather, to the handing over of possession of
the suit premises to the respondents, in which case these are matters which
must be determined under section 38 rather than under section 78 of the
Civil Procedure Code 1966.
 In my view the learned Chief Justice was not barred from hearing the
application of 18th May 1971_ he had jurisdiction by virtue of section 95 to
make the order of 21st May, 1971.
 I would accordingly dismiss the appeal with costs.