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Present: Lascelles C. J. and Wood Renton J.
,COSTA et <d v. SILVA et al.
28— D. C. Colombo, 960.
Appeal—Interlocutory * order—Objectionsto account filed by executors—
One issue decided against executors—No amount ordered to bebrought into Court.
Objectionwas takentotheaccount filed bythe ' executors
on severalgrounds. Onthedayfixed for inquiryit was agreed
that one of the issues should be tried on that day, viz., the issue“ Whether the executors had sold any of the properties belongingto the estate for less than their real values; if so, which of them? ”The District Judge answered the question raised . in the. affirmative,but did not specify the exact sum which he considered to be thetrue value of the properties sold, and did not make any orderdirecting the executor to bring any particular amount into Court.
Held, that this was not an appealable order.
rjl HE facts appear in the judgment.
Walter Pereira, K. C., S. G. (with him Samarawickrema), for therespondents.—There is no appealable order in this case. Only one'issue in the case has been decided, but no formal order has been drawnup. The judgment does not even say what sum the executors haveto bring into Court. Every decisiop of a Judge is not appealable.
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H. J. 0. Pereira (with him Jayatileke), for the appellants.—TheDistrict Judge has decided one issue in the case. It was agreedbetween the parties that the issues should be decided one by one.If no appeal was taken against the judgment on the present issue,the appellants would be barred. See Punchi Appuhamy v. Mudi-anse.1 [Wood Benton J.—There is nothing to prevent yourappealing in the end, on all maters.]
This is a formal order of the District Judge, and is thereforeappealable (Pieris v. Per era2).
If no writ issues now, appellant is not anxious to have the appealheard now.
May 27, 1912. Lascelles C.J.—
I have no doubt that the appeal in this case is premature. Thisis a petition for a judicial settlement, in which objection is taken tothe account hied by the executors on nine grounds. When thepetition came on for trial on May 29, 1911, it was agreed that oneof the issues should be tried on that day, namely, the issue “ Whetherthe executors had sold any of the properties belonging to the estatefor less than their real values; if so, which of them?"
A good deal of evidence was heard, and the Judge declared hisdecision on January 11, 1912. He there states that one of theexecutors’ own witnesses had valued certain property sold by theexecutors at Bs. 8,801, which property the executors had sold forRs. 5,500, and the learned District Judge expressed the opinionthat the properties sold were worth at least double the amount forwhich they had been sold; and in the result the Judge answeredthe question raised in the issue in. the affirmative. He did notspecify the exact sum which he considered to be the true valueof the property, and he did not make any order directing theexecutors to bring any particular amount into Court. It seems dearto me that this is not an appealable order. It amounts to no morethan an expression of opinion on one of several issues, which, forthe sake of convenience, was heard separately from the others.The inconvenience of allowing an appeal to be taken against everyitem of a contested account is obvious. If such a proceeding wereallowed, an inquiry into the accounts of an executor might berendered impracticable. After the Judge has made his decree onthe petition for a judicial settlement, the. appellant will havean opportunity, if he is so advised, of appealing against any ofthe findings to which he objects. In my opinion the appeal ispremature, and must be dismissed with costs.
Wood Benton J.—
I am of the same opinion, for the same reasons.
1 (1907) 2 A. C. B. 159.2 (jgge) 10 N. L. R. 41.
COSTA et al. v. SILVA et al