Vsoof v4 The National Bank of India, Ltd,
1958Present: Gunasekara, J., and Sansoni, J.A. E. M. USOOE et al., Petitioners, and THE NATIONALBANK OF INDIA, LTD., Respondent
Application for Conditional Leave to appeal to the Privy Council8. G. Inly. 35—D. C. Gobmbo, 3,455IM. B.
Privy Council—Order made in execution proceedings between the parties to an coition—Right to appeal therefrom—“Final judgment”—Appeals (Privy Council)Ordinance (Cap. 85), Schedule, Rule 1 (a).
A judgment of the Supreme Court dismissing an appeal from an order of aDistrict Court refusing to set aside a sale of property in execution of a decreeis a final judgment within the meaning of Rule 1 (a) of the Schedule to theAppeals (Privy Council) Ordinance, although the property sold in executionwas purchased by the judgment-creditor himself and not by a third party.
SAINS ONI, J.—Usoof v. The National Bank of India, Ltd.
■^APPLICATION for conditional leave to appeal to the Privy Council.
Sir Lalita Rajapakse, Q.G., with V. C. Chmatilaka, for the Defendants.Petitioners.
H. V. Perera, Q.C., with S. J. Kadirgamar and W. T. P. Goonetilleke,for the Plaintiff-Respondent.
Cur. ctdv. vult.
June 10,1958. Sa»soui, J.—
This is an application by the defendants for conditional leave to appeal,to the Privy Council against the judgment of this Court dated 20thJanuary 1958. By that judgment this Court dismissed the appealof the defendants from an order of the District Judge of Colombo refusingto set aside a sale held by an auctioneer in execution of a mortgagedecree entered against the defendants.
The mortgage decree ordered the defendants to pay the plaintiff thesum of Rs. 1,101,658/38, interest and costs. Upon an order to sellissued to (the auctioneer the mortgaged property which was valued atRs. 700,000 was purchased by the plaintiff. The District Judgecharacterised the application to set aside the sale as “a frivolouslydilatory application ”, and the defendants’ appeal was dismissed, theCourt giving no reasons. The only matter for our decision, however,is whether the judgment of this Court is a “ final judgment ”, within themeaning of Rule 1 (a) of the Schedule to The Appeals (Privy Council)Ordinance (Cap. 85), from which an appeal lies as of right.
■ The question would appear to have been answered in Usoof v. NadarajahChettiar1 where it was held, following Subramaniam Chetty v. Soysa2that a judgment of the Supreme Court dismissing an appeal froman order of a District Court refusing to set aside a sale of property inexecution of a decree is a final judgment. But it was urged for theplaintiff-respondent at the hearing of this application that a distinctionshould be drawn between an application to set aside a sale at which theproperty sold has been purchased by the judgment-creditor, and oneat which the property sold has been purchased by a third party. Thepresent application falls within the first category, while the applicationin Subramaniam Chetty v. Soysa 2 fell within the second category.
I do not think such a distinction can be validly drawn for the reasonthat the Privy Council decision in Krishna Pershad Singh v. Moti Chand swhich was followed in Subramaniam Chetty v. Soysa2 was given in acase where the property sold in execution of the decree was purchased bythe judgment-creditor. The judgment-debtor appealed to the PrivyCouncil against the decision of the High Court refusing to set aside thesale, and one of the objections taken at the hearing was that no appeal lay.
1 (1957) 58 N. L. B. 436.* (1913) 25 N. L. B. 344.
* (1913) 40 Cod. 635.
SANSONI, J.—Vsoof v. The National Bank of India, Ltd.
Lord Moulton held that the order was a final order- whioh dealt finallywith the rights of the parties, and an appeal lay. At the time thatdecision was given it was the Civil Procedure Code of 1882 whioh governedthe matter. Section 595 of that Code provided that an appeal lay from a“ final decree ” and Ldrd Moulton said that the word “ decree ” must beread as equivalent to “ deoree, judgment or order ”. Bertram C.J.followed that decision in Subramaniam v. Soysa 1 and I think that weshould follow it ourselves.
It was also urged for the plaintiff-respondent that the words “ finaljudgment ’ ’ in rule 1 (a) must be construed in the light of the PrivyCouncil decisions in Bamchand Manjimal v. Goverdhandas VishandasBatanehand a hnd Abdul Bahrnan v. Gassim and Sons s. In the formerdecision Viscount Cave considered what the words “ final order ” meant,and said: “ An order is final if it finally disposes of the rights of theparties ”. His Lordship clearly approved of the definition in Bozson v.Altrincham Urban Council 4 where the Lord Chief Justice said :“ It
seems to me that the real test for determining this question ought to bethis : Does the judgment or order, as made, finally dispose of the rightsof the parties ? If it does, then I think it ought to be treated as a finalorder; but if it does not, it is then, in my opinion, an interlocutory order”.Viscount Cave then went on to say:“ The orders now under appeal
do not finally dispose of those rights, but leave them to be determinedby the Courts in the ordinary way. In their Lordships’ view, the orderswere not final and accordingly the appeals cannot proceed In 1933the Privy Council applied this same test and elaborated it, saying:"The finality must be a finality in'relation to the suit. If, after theorder, the suit is still a live suit in which the rights of the parties havestill to be determined, no appeal lies against it under section 109 (a)of the Code ”.
Now neither of the two later decisions of the Privy Council to whichI have referred related to execution proceedings, whereas the decision inKrishna Pershad Singh v. Moti Chand 5 dealt directly with the questionraised in this appeal. I regard that decision as authority for the viewthat there can be a final order or judgment even in execution proceedingsbetween the parties to the action. It seems to me to dispose of theargument that when the mortgage decree was entered in this action ithad been finally determined, and that there could be no further finaljudgment as between the parties. While it is true that a judgment isnot final unless it finally disposes of the rights of the parties—and itwas for this reason that no appeal was held to lie in the two later PrivyCouncil decisions—I do not see why there cannot be a final judgment inexecution proceedings, whether those proceedings – are between theparties to the action or not; and so far as the judgment-debtors in thiscase are concerned, they have, by the judgment of this Court, finally losttheir rights in the mortgaged property, and the execution proceedingsare no longer live proceedings. 1
1 (1923) 25 N. L. B. 344.
A. I. B. (1920) P. C. 86.
5 (1913) 40 Gal. 635.
A. I. B. (1933) P. C. 58.
(1903) 1 K. B. 547.
SANSONI, J.—Usoof v. The National Bank of India, Ltd.
I do not think that the view I have taken conflicts with the decisionin Palaniappa Ghetty v. Mercantile Bank of India 1 to which we werereferred. In that ease it was held that an order allowing an applicationfor execntion of a mortgage decree was not a final judgment. Such anorder may be equated to an order that an action should proceed to trial,which the Privy Council in Abdul Rahman v. Gassim and’ Sons 2 heldwas not a final order.
For these reasons I am of the opinion that the judgment in questionis a final judgment. The defendants-petitioners are therefore entitledto conditional leave to appeal, which is allowed with costs.
Gunasbkaba, J.—I agree.
Application allowed. '
A. I. R. (1933) P.G. 58.
1 (1942) 43 N. L. R, 352.
A. E. M. USOOF et al., Petitioners, and THE NATIONAL BANK OF INDIA, LTD., Resp