( 101 )
KAT.IT MENIKA V. KERALA.C. R., Matale, 4,387.
Partition-Interlocutory decree mode under e. 4 of the Ordinance No. 10 of1868—Courte Ordinance, s. 80—Right to appeal therefrom.
A person aggrieved by a preliminary or interlocutory order madeby a Court of Bequests under seotion 4 of the Partition Ordinance hasthe right to appeal at once to the Supreme Court.
rp HE plaintiff in this case prayed for a partition of the land de-■* scribed in the plaint, on the footing that he was the owner ofone-fifth share of it and the defendants the remaining four-fifths.The Commissioner (Mr. W. Dunuwille), after hearing evidence,decreed, in terms of section 4 of Ordinance No. 10 of 1863, that apartition of the land described in the schedule annexed to theplaint be effected, allotting to plaintiff one-fifth share.
The defendants appealed.
The case came on for argument before Middleton, J., but'upon a preliminary objection raised on behalf of the respondentthat section 80 of the Courts Ordinance limited the right ofappeal given by section 19 of the Partition Ordinance, his Lordshipdireoted the case to be listed before the Full Court.
W. Jayawardane and Prins, for appellants.
H. Jayawardane, for respondent.
By the following judgments delivered on the 21st July, 1902,their Lordships over-ruled the objection raised, and direoted thatthe appeal be listed for argument on the merits.
21st July, 1902. Moncbeiff, A.C.J.—
This case came before my brother Middleton on appeal fromthe Court of Requests of Matale. The action was for thepartition of land, and we are asked to say whether the defendantis entitled to appeal from the preliminary or interlocutory decreemade in the case under section 4 of the Partition Ordinance of1863.
I think he is entitled to appeal. Section 19 of the Ordinancegives an appeal from “ all decisions and orders of any Court madeunder, the authority of the Ordinance.” It was said that thisprovision was repealed, by implication, by section 81 of theCourts Ordinance, which grants an appeal for any error in lawor fact from any final judgment or order having the effect ofa final judgment. I think. it was not repealed. The section in
( 102 )
the Courts Ordinance is affirmative, not negative; and it is a.recognized rule that—except when a contrary intention is dear—a general provision will be presumed to have silently excluded.existing special provisions from its operation.
I do not think it necessary to discuss whether the so-calledinterlocutory decree in a partition action is a final judgment, or anorder having the effect of a final order.
I am of the same opinion, and I may add that ever since I havebeen at the Bar appeals from Courts of Bequests from what iscalled an interlocutory decree in partition cases have beenentertained and dealt with without objection. Appeals fromCourts of Bequests, ever since appeals were allowed at all,have been limited to appeals from final judgments, or ordershaving the effect of final judgments. Notwithstanding thislimitation, such an appeal as that now in question has, as I havejust stated, been uniformly permitted. It seems to me also that adecree of a Court determining the title of the parties before it tolands under partition must be regarded, subject of course to appeal,as final between those ^parties, and if this view be correct appealswill be competent from such a decree under the very terms ofsection 80 of the Courts Ordinance. It is unfortunate that thereis nothing definite in that Ordinance as to the term judgment.There can be no appeal from a judgment as defined in the CivilProcedure Code, because a judgment is merely the reasons givenby the Court for its decision.
The question. in this case is whether a person aggrieved by apreliminary order under section 4 of the Partition Ordinance,No. 10 of 1863, can appeal at once to the Supreme Court. Therecan be no doubt that by section 19 of the same Ordinance anappeal would lie, but it has been contended that the effect ofsection 80 of the Courts Ordinance, No. 1 of 1889, is to limit theright of appeal in Courts of Bequests cases to persons dissatisfiedwith finaljudgment, orany. orders havingthe effectof final
judgment.I understandthat it has alwaysbeenthepractice
to hearappeals fromthese preliminaryorders,apractice
beginningwith the original right under section19 ofthePartition
Ordinance and continuing unquestionedly after the passing of the■ Courts Ordinance. We have, .therefore, the usage of .the Courtsfor at least twenty-six years in favour of the theory that an appealwill lie in these cases.
( 103 )
There is also the presumption that the Legislature would not 1902.effeot a measure of so much importance as the ouster or restriction July 21.of the jurisdiction of the Supreme Court without an explicitexpression of its intention (see Maxwell on the Interpretation of J-Statutes p. 178). By section 19 of the Partition Ordinance aspecial right of appeal is given against all decisions and orders ofany Court made under the authority of the Ordinance, and theuse of the word “ decision ” to my mind contemplates a right ofappeal co-extensive with the exigencies of the Ordinance, whichmay make it necessary that at different stages decisions have tobe given, 6uch as an amendment or alteration of a Commissioner’sapportionment in point of place against which an appeal might betaken. The words in section 80 of the Courts Ordinance declarethe general power of appeal in Courts of Bequests oases, and onthe principle generalia speciaUbus non derogant by mereimplication, I would hold that section 80 of the Courts Ordinancedoes not limit the special right under section 19 of the PartitionOrdinance.
It may further,. I think be said that such orders as are madeunder section 4 of the Partition Ordinance are orders having theeffect of a final judgment. They certainly have this effect if noappeal is taken, or no other parties intervene or are cited. Forthese reasons, therefore, I am of opinion that an appeal will lie,against orders made under section 4 of ■ the Partition Ordinance,and that section 19 of that Ordinance is not affected by section 80of the Courts Ordinance.
KALU MENIKA v. KERALA