Sri Lanka Law Reports
11986) 1 SriL.R.
WANASUNDERA. J.. RANASINGHE. J. AND L. H. DE ALWIS. J.
S.C. APPEAL 61/85.
D C. NEGOMBO 2750/L.
NOVEMBER 14. 1985.
Appeals-S. 84. s. 754 and s. 765 of Civil Procedure Code as amendedby Laws Nos. 19 and 20 of 1977-Orders and Judgments-Petition of Appealnotwithstanding lapse of time-Provisos.
Where the question was whether the provisions of s.765 of the Civil Procedure Code asamended by Laws Nos. 19 and 20 of 1977 relating to the powers' of the Court ofAppeal to admit and entertain petitions of appeal notwithstanding lapse of time applyonly to appeals preferred in terms of subsection (1) of s. 754 (Judgments) of the saidCode or whether they apply also to appeals preferred in terms of the provisions ofsubsection (2) of s. 754 (Orders).
Karunadasa v. Wijesinghe
11) Upon a reading of the provisions of both the main enactment of s.765 (CivilProcedure Code) and of the two provisos, in particular the second of the provisos,together the intention of the Legislature was to grant the relief, set out in the provisionsof S. 765 of the Code, not only to "judgments" falling within the provisions of s. 184 ofthe said Code but also to "Judgments" and "Orders" as defined in subsection 5 of s.754 of the said Code.
(2) The general rule in regard to the construction of provisos is that, they are not to betaken absolutely in their strict literal sense but are of necessity limited in their operationto the ambit of the section which they qualify. If however the-language makes it plainthat they were intended to have an operation more extensive than that of the provisionwhich they immediately follow, they must be given that effect. If a proviso cannot reallybe construed otherwise than as contradicting the main enactment then the proviso willprevail on the principle that it speaks the last intention of the maker.
Case referred to:
Vithane v, Weerasinghe and Another  1 SLR 52.
APPEAL from order of Court of Appeal.
Lalanath de Silva for plaintiff-respondent-appellant.
R. K. W. Coonesekera with Ran/an Mendis for defendant-appellant-respondent.
•Cur. adv. vult.
December 10, 1 985.
The question which arises for determination in this appeal is:
Whether the provisions of sec. 765 of the Civil Procedure Code(Chbp. 101), as amended by Laws Nos. 19 and 20 of 1977.(referred to hereinafter as "the Code") relating to the powers of theCourt of Appeal to admit and entertain petitions of appealnotwithstanding lapse of time, apply only to appeals preferred interms of the provisions of subsection (1) of section 754 of the saidCode, or whether they apply also to appeals preferred in terms ofthe provisions of subsection (2) of the said section 754.
Sri Lanka Law Reports
 1 SriL.R.
The provisions of the said sec. 765 are as follows:
"It shall be competent to the Supreme Court to admit andentertain a petition of appeal from a decree of any original court,although the provisions of section 754 and 756 have not beenobserved:
Provided that the Supreme Court is satisfied that the petitionerwas prevented by causes not within his control from complyingwith those provisions; and
Provided also that it appears to the Supreme Court that thepetitioner has a good ground of appeal, and that nothing hasoccurred since the date when the decree or order which isappealed from was passed to render it inequitable to thejudgment-creditor that the decree or order appealed fromshould be disturbed".
The main submission made in support of the contention that theprovisions of sec. 765 cannot be called in aid of appeals filed underthe provisions of sub-sec (2) of sec. 754 is that the provisions of sec.765 speak only of a petition of appeal from "a decree" of an originalcourt. The references made in the 2nd proviso of sec. 765 and insection 766 to a "judgment creditor", the requirement, as set out insec. 767, that applications made under sec. 765 be upon summaryprocedure, are relied upon as circumstances indicative of the intentionof the legislature to confine the relief contemplated by sec. 765 onlyto petitions of appeal from decrees of original courts. 1/ has also beencontended tlfat the provisos cannot control the provisions of the mainenactment.
The relief given by the main enactment-sec. 765- which dealswith appeals notwithstanding lapse of time, is extended to thepetitions of appeal referred to therein because of their failure toobserve the provisions of secs. 754 and 756.
Karunadasa v. Wijesinghe (Ranasinghe, J.)
Secs. 754 and 756 both appear in Chapter 58 which deals withboth Appeals and Revisions.. Sec. 754 sets out the mode of preferring.,an appeal. Whilst in subsection (1) the said section 754 provides foran appeal from a "judgment" pronounced by an original court, itprovides, in subsection (2), for appeals from "orders" made by originalcourts. Subsection (4) refers to both decrees and "orders".Subsection (5) defines, for the purposes of the said chapter, the terms"judgment" and "order", sec. 756 sets out the procedure in respect ofappealS'and application for leave to appeal. Whilst subsec, (1) of sec756 relates to a petition of appeal, all the subsequent subsections, (2)to (7), deal with an application for leave to appeal against an order of aDistrict Court. The provisions of secs. 754 and 756 deal not only withappeals filed as of right against a "judgment" of a District Court, butalso with applications for leave to appeal against an "order" made by aDistrict Court.
The term "decree" has been defined in sec. 5 of the Code; and, inaccordance with such definition, the decree of a District Court wouldbe the formal expression of an adjudication by such court upon anyright claimed or defence set up in such court when such adjudicationdecides, as far as such court is concerned, the action in such court.Sec. 188 of the Code requires a formal decree, either in Form 41 ofthe First Schedule or to the like effect, to be drawn up as soon as maybe after a judgment is pronounced specifying in precise words theorder which is made out by the said judgment. The word "judgment"appearing in this Chapter XX will only have the leaning set out in theinterpretation section 5. It will not attract to itself the special meaningassigned to it by sub-paragraph (5) of sec. 754, which said meaning,as already stated, is so given only for the purposes of the chapter (viz.Chapter LVIII) in which sections 754 and 756 both appear. Hence adecree will relate only to a judgment, as defined in sec. 5. An "orderhaving the effect of a final judgment", included in the definition of a"judgment" set#out in sub-section (5) of sec. 754, will not, therefore,be covered by a decree. .t
The reference in sec. 765 to not only a decree, but also to sections754 and 756, both of which relate not only to judgment but also toorders as defined in that chapter, raises a question as to the reach andscope of the said section-whether only judgments, as defined in sec.5, are intended, or whether relief was intended to be given also toappeals against "orders" which are also referred to in both sections754 and 756.
Sri Lanka Law Reports
11986] 1 SriL.R.
It has been contended that relief, in the form of permitting an appealnotwithstanding the fact th^t it is out of time, has not been extendedto Orders, which have to be appealed against only with the leave ofthe Court of Appeal, because there would still be another opportunityof raising any grievances against such Orders; namely, at the stage ofan appeal against the judgment, to be pronounced in the case in termsof sec. 184 of the Code. Even if that be so in regard to such Ordersmade before judgment, yet such an opportunity would not be availableto such Orders as are often made after the judgment is pronounced.Furthermore, such an opportunity will also not be available to orders"having the effect of a final judgment" as such orders, whether madebefore or after the judgment in the case is pronounced, do not havethe benefit of a decree set out in sec. 188 of the Code.
The provisions of the aforesaid sec. 765 of the Code, as amendedand revived by Laws Nos. 1 9 and 20 of 1 977, and the provisions ofthe corresponding section, also numbered 765, in the Civil ProcedureCode, as it stood prior to its repeal, in 1976, by the provisions of LawNo. 25 of 1975 (which said Code will be referred to as "the earlierCode"), are identical.
The procedure for the institution of appeals from the District Courtset out in the earlier Code was also contained in sections 754 and756 of the said earlier Code. The requirement that an appeal shouldbe initiated by the tendering of a notice of appeal within 14 days andthat a petition of appeal should thereafter be filed within a period ofsixty days from the date of the judgment appealed against was notknown to the said earlier Code. What was then required was the filingof a petition of appeal within a period of 14 days, the perfectionthereafter, also within a specified time, of the security for the costs ofappeal of the respondents, and the issuance of, after the acceptanceof such security, notice of appeal, along with a copy of the petition ofappeal, on the respondents. Even though two forms if appeal – oneas of right aftd the other with leave of the appellate court – were alsounknown to the earlier Code, yet, two categories of appeals, known asFinal and Interlocutory Appeals, were recognized and available underthe earlier Code too. The procedure to be followed to lodge andperfect appeals falling into each of the two categories was one and thesame – the procedure laid down by sections 754 to 756 of the saidearlier Code. Under the said earlier Code the relief set out in section765 thereof was available to such Interlocutory appeals also.
Karunadasa v. Wijesinghe (Ranasinghe. J.)
The procedures set out in regard to appeals under the earlier Codeand the Code now in force were compared and contrasted in the caseof Vithane v. Weerasinghe and Another where the Supreme Courtconsidered the question whether the relief set out in sec. 765 of theCode could be available where the petition of appeal, which had to bepresented within sixty days from the date of the judgment or decreeappealed against, had been filed one day late. Wanasundera, J.,writing the judgment of the Court, took the view: that the process ofappealing now set out in the Code involves, as was the position underthe Administration of Justice Law, No. 44 of 73, "two stages": thatthe time limits set out in sections 754 and 756 of the Code are inrespect firstly of the lodging of an appeal by giving notice of appealand secondly of the filing of an application for leave to appeal: that thecase under consideration was an instance of the "second stage" in theappellate procedure: that the provisions of sec. 765 are limited to the"first stage": that, although sec. 755(2) of the Code also contains atime limit, there is no reference to that section in sec. 765: that,therefore, no relief by way of sec. 765 could be granted.
Sec. 765 also contains two provisos, the second of which sets outthe subject-matter, in respect of which the relief intended to begranted by the main enacting provision is to ^pply. as being appealsnot only from decrees but also from "orders". The contents of theprovisojeave no room for doubt that the relief so set out could beinvoked in respect of appeals both from decrees entered, and ordersmade by the District Court. How far this proviso could influence theconstruction of the provisions of the main enactment is the questionwhich would now arise for consideration.
The general rule in regard to the construction of prcfl/isos is: thatthey are not to be taken "absolutely in their strict literal sense:" a
proviso "is of necessitylimited in its operation to the ambit of the
section which it qualifies": that if, however, the language makes itplain that it was intended to have an operation more extensive thanthat of the provision which it immediately follows it must be given suchwider effect: that if a proviso cannot really be construed otherwise
Sri Lanka Law Reports
[19861 > Sri L.R.
than as contradicting the main enactment, then the proviso willprevail, on the principle that "it speaks the last intention of themakers" – (Maxwell-12th EH.-pp. 189-191): "the terms of anintelligible proviso may throw considerable light on the ambiguousimport of the statutory words": a proviso may be a useful guide in theselection of one or otherof two possible constructions of words in theenactment or to show the scope of the latter in a doubtful case-(Craies-7th Ed. – p. 218): that, if the main provision is not clear, theproviso cannot be deemed to be a surplusage and can be properlylooked into for ascertaining the meaning and the scope of the mainprovision, and, if the language is susceptible to the interpretationwhich is consistent with the proviso, the latter may be called in aid:that the proviso must be construed harmoniously with the mainenactment – (Bindra-6th Ed.-pp. 65-68).
Upon a reading of the provisions of both the main enactment of sec.765 and of the two provisos, in particular the second of the twoprovisos, together on the basis of the principles referred to above, itseems to me that the intention of the Legislature was to grant therelief, set out in the provisions of sec. 765 of the said Code, not onlyto a judgment falling within the provision of sec. 184 of the said Code,'but also to both "Judgments" and "Orders" as defined in sub-sec. (5)of sec. 754 of the said Code.
It also seems to me that, in construing provisions dealing with theright of appeal, a court ought to place such a broad construction aswould operate to preserve to a party aggrieved such a right.
For these reasons, the Order of the Court of Appeal, dated28.9.84, is affirmed; and the appeal of the plaintiff-respondent-appellant is dismissed. Costs of this appeal are to abidethe final decision; but the plaintiff-respondent-appellant will not beentitled to the costs of this appeal to this Court in any eflvent.
WANASUN[?ERA. J. – I agree.
L. H. DE ALWIS, J. – I agree.
Order of Court of Appeal affirmed.
1-KARUNADASA v. WIJESINGHE