Loll v. Emmanuel.
1931Present: Macdonell C.J. and Akbar J.
LALL v. EMMANUEL138—D. C. (Inty.) Jaffna. 5,870.
PrivyCouncil—Judicialsettlement ofaccounts—Orderagainst administrator
to bring money into Court—Finaltty^-Ordinance No. 31 of 1909, schedule I*,,rule 1 (a).
Where, in the course of proceedings for judicial settlement of an estate,the District Judge orders an administrator to bring into Court a certainsum of money, appearing in the accounts died by him,—
' Held that the order was not a final order within the meaning ofBuie 1 (a) of the first schedule to the Appeals (Privy Council) Ordinance,No. 31 of 1909.
^ PPLICATION for leave to appeal to the Privy Council.
H. F. Perera (with*hlm Chratiaen), for the appellant.
Hayleyt K.C. (with him Navaratnam),. for the present administrator,showed cause—
No appeal lies to the Privy Council, as this is not a “ civil suit or action *'*wffehin the meaning of the Ordinance. The words “ suit ’’ and “ action ”have a well-known legal signification, and presuppose the existence of
MACDONELL C.J.—Lall v. Emmanuel,
parties. Any other form of proceedings is a “ matter ” (Halsbury’sLaws of England /., p. 2). Here the only person before the Court was theappellant, over whose conduct- as official administrator .the Court exercisesdisciplinary control. The provisions of the appeals (Privy Council)Ordinance,No.31 of 1909,clearlyindicate thatthere must be a
respondent to the appeal (vide also 1 N. L. R. 196, 3 Lov. 234, 3 C.L, R. 45, 18 N. L. ii. 117. 13 .V. L. R. 207, o C. L. R. 17, 7 C. L. R- 70,
^ Moore's P. C. Cases 574.
In tiny event the order of the District Judge is not a “ final judgment ofof the Court ”, The appellant has been ordered to bring a sum of moneyinto Court pending the judicial settlement. There is no finality regardingthe destinationor ownershipof thismoney untila decree of judicial
settlementhasbeen entered(vide Civil ProcedureCode, ss. 734t 739,
y740). A judgment or order is not “ final ” if it does not finally decidethe rights of the parties regarding the matter in dispute (12 N. L. R.367; 27 N. L. R. 65). As to the effect of a decree for judicial settlement(vide ReKiritisinghe KudaBanda 1and Pererav. Fernando.2) In
any event, until the judicial settlement proceedings are finallydetermined, the appellant cannot be heard to say that the “ valueof the matter in dispute ” is over Bs. 5,000, as required by the Ordinance.It will be open to the appellant in those proceedings to furnish proofthat the money which he has been ordered to bring into Court forms nopart of the estate.
H. V. Perera in reply.—The objections taken by the respondent cometoo late. The appellant has already been granted conditional leaveto appeal to the Privy Council, and as the conditions imposed havebeen satisfied, this Court has no jurisdiction to withhold final leave toappeal.
[Macdonell C.J.—It seems to me that this Court has an inherentpower to vacate any order which has been made per incuriam.]
Conditional leave was rightly granted. The proceedings in question comewithin the meaning of the term “ suit ”, which has a wider significancethan :s attached to the term “ action ” in English law. The term” suit ” embraces all contentious proceedings of an ordinary civil kind(Blenpendra Narayan v. Boroda Prasad2). The order is “final ” inthat it finally compels the appellant to bring into Court a sum ofmoney before a certain date. To this extent the order is one whichcannot be reconsidered at a later stage of the ' proceedings (vide 27N. L. R. 65). The appellant disputes his liability to pay that moneyuntil the determination of the proceedings for a judicial settlement ofthe estate. The amount involved exceeds. Bs. 5,000, and an appealtherefore lies to the Privy Council.
March 19, 1931. Macdonell C.J.—
This was an application for leave to appeal to the Privy Council againstan order of the District Judge, Jaffna, dated April 15, 1930, which wasaffirmed on appeal by this Court. The applicant was Secretary of the 8
1 2 Bala. 87.
8 18 Cal. 500.
8 2 S. C. B. 54.
MACDONELL C.J.—Lett v. Emmanuel.
District Court, Jaffna, and is now Secretary of the District Court. Kurune-gala, and was the sole official administrator of the above estate untilOctober 15, 1929, since when he has been joint official administratorwith the present Secretary of the District Court, Jaffna, the respondent-on ibis application. The administration of the estate has dragged onfor a number of years and it does not seem to be disputed that a formerDistrict Judge at Jaffna exercised insufficient supervision over the doingsof the applicant as its administrator. The present District Judge, notbeing satisfied with the position of things or with the accounts filed bythe applicant, appointed January 8, 1930, for the examination of theapplicant, who on the same day filed a petition for judicial settlement.The applicant was examined on sundry days in January, 1930, and againon March 28, 1930. Thereafter, the District Judge made an order onApril 15. 1930, that the applicant should file an amended account andbring into Court certain sums of money, said to be the property of theestate, amounting in all to Rs. 42,357.47. He appealed on April 25,1930, against the whole of this order so far as it required him to bringmonies into Court.
The appeal was heard on November 6, 1930, by my brother Akbar andmyself when it was argued, not that the order to bring money into Courtwas wrong as a whole, but only in so far as it required the appellant tobring in Rs. 1,200 which he had paid himself as commission and anitem of Rs. 9,000 which he showed in his accounts as paid to a certainproctor. During argument, however, the contention that the orderwas wrong as to the Rs. 1,200 was abandoned, so eventually it was onlythe Rs. 9,000 paid to the proctor as to which the order was challenged.The appeal so narrowed down was dismissed by the Court on November13, 1930, my brother Akbar delivering a written judgment. The appellant,thereupon, applied for leave to appeal to the Privy Council and obtained,on December 9, .1930, conditional leave to appeal, the Court whichgranted it making order at the same time that application for finalleave should not be made until January 19, 1931, and that notice of theapplication should be issued to the co-administiator of the estate. Theapplicant stated that he appealed agains.t the whole order of the DistrictJudge requiring him to bring money into Court and not merely againstthose items of that order agains.t which he had appealed to this Court on•November 9, 1930. On the order of December 9, 1930. giving conditionalleave to appeal, the co-administrator intervened as respondent andopposed the application for final leave. The matter was eventuallyargued before us on March 2 and 4, 1931, when the application for leaveto appeal was dismissed with costs. We intimated that we would giveour reasons later and we now do so'.
It was argued that the matter before the Court was not “ a final judg-ment of the Court * *—vide rule 1 (a) in schedule I to Ordinance No. 31 of1909—in “a civil suit or action/* vide section 4 of Ordinance No. 31 of 1909,and that in consequence no appeal lay to the Privy Council thereon.This argument involved, and was put forward as involving, two pro-positions, first that this was not a " judgment ” in a “ civil suit or action ",and secondly that it was not a “ final judgment ”. In support of thefirst contention section 64 of the Civil Procedure Code was cited, giving
MACDONELL C.J.—Lall t>. Emmanuel.
jurisdiction to District Courts in all ’* testamentary matters ”, and it wascontended that this was a " matter " only and not an action; and seeHe Insolrnif ICutate Marikar l. It was argued that an action requiresmore parlies than one, while here the applicant was the only party,and that this order was rather a disciplinary one by the Court to itsofficial than a “ judgment in an action I express no opinion on thisargument since 1 think tlle application can be better decided on thesecond contention involved, namely, that the order appealed from wasnot “ final
We must remember what the order was and in what proceeding. Theapplicant had petitioned under section 729 of the Civil Procedure Codefor o judicial settlement and that petition was and is still pending.Sections 789 and 740 state the matters as to which a judicial settlement is“ conclusive ” and amongst these, section 739 (1), are 44 items allowed tothe accounting party for money paid to creditors. . . . for his *necessary expenses and for his services ”, and this means that untiljudicial settlement as to them has been decreed, these items are notconclusively settled. Section 734 provides for the manner in which“ items of expenditure ” can be vouched, and allowed. When so vouchedand allowed, these items will duly become “ conclusive ” by decree ofjudicial settlement, as provided by sections 739 and 740. Now theapplicant here is an accounting party, and the monies he has been orderedto bring into Court can, all or most of them, he brought under one orother cf the headings of “ money paid to creditors ” (i.e., of the estate)or 41 necessary expenses ” or “ services ” rendered by the accountingparty, and section 734 gives him the means of vouching, and so of beingallowed, these items at any time up .to the decree of judicial settlement:
This statement of the present position in law of the applicant seems tome to go far to show that this order to the applicant to bring certainmonies into Court cannot be a final one. The order determines nothingas to the final destination or ownership of the monies to be brought intoCourt, for, until decree of judicial settlement it is always open to theapplicant to prove that these monies have been properly expended forthe use of the estate and that consequently they are chargeable to theestate and not to him.This can best be tested by a particular and
concrete case, that of the Rs. 9,000 that applicant says he paid to acertain proctor and which was the point argued on the appeal to this Courtfrom the order of the District Judge. The applicant can produceto the District Judge the vouchers for this payment which perhaps werenot available to him when the order , to bring this money into Court wasmade, and on those vouchers being in order he can claim to take theRs. 9.000 out of Court again, with the right of appeal to this Court ifthe District Judge refuses to allow him to do so.
One can test the point yet further. Part of the order of April 15, 1930,was that the applicant should file further accounts, and from this partof the order he has not appealed. Let us suppose him to obey, voluntarilyor on compulsion, this part of the order and file further accounts. It isalways possible, both in law and fact, that those further accounts, whenfiled, might show conclusively that these monies he has been ordered
1 l sr. L. R. 196.
MACDONELL C.J.—Lull v. Emmanuel.
to bring into Court;, had been properly expended for the use of the estateand that thus they were not chargeable to him the applicant. He wouldthen be permitted to take them out of Court. Such order might bemade just before .the Privy Council was called on to decide whether heshould bring these monies into Court at all. Then the Privy Councilwould be in this position, that it would be determining a matter alreadydetermined and on which any decision it gave, must be nugatory. Thisconsideration must raise yet further doubt whether this order to bringthese monies into Court can be a final one.
Authority is against the order being a final one. In The Ceylon TeaPlantation Co., Ltd., v. Carry *. Hutchinson C.J. speaks of a final decree assomething that “ finally decides the rights of the parties on the principalquestion between them ”. Here the principal question at issue is whetherthe applicant owes these monies to the estate or not, and, as has been.shown, the order appealed from does no,t decide that question. In lieKiritislnghe Kuda Banda,9 Pereira A.J. says at page- 91 “ The proceedingfor a judicial settlement commences with a petition upon which certaincitations issue as in the case of a plaint in an ordinary civil action.” Aslaid down by Mr. Justice Withers in Perera v. Fernando 3, ‘ the objectof a judicial settlement is to bring the administration to a close, and theeffect of it is to conclude all parties cited to attend the proceedings andtheir privies in estate with regard to certain facts connected with the. administration, e.g., the correctness of items allowed to creditors, legatees,heirs, and next of kin.’ So that, unless these items are determined upon,it cannot be said that there is a final order in the proceeding. As heldin Salomon v. Warner, 4 ‘ an order is final only when it is made upon■ an application or other proceeding which must, when such application orother proceeding fail or succeed, determine the action ’…. The
District Judge held that the applicant as a nephew of the deceased, wasentitled to a sixth share of the estate and he adjudicated upon the interestof the other parties also to the application, and ordered the filing of anaccount on that footing. So that the applicant still had an interest inthe further steps to be taken in the proceeding. Any way, the orderdid not, in terms of the judgment in the case I have cited, “.determine ”the proceeding. The Code, it is clear from section 740, provides for adecree to be entered up in a proceeding for a judicial settlement, and theorder in question appears to me to be merely incidental to the stepsleading up .to that decree.” This case is a stronger one than the presentand if an order deciding what share of the estate an applicant was entitledto is not final, I do not see how an order merely to bring money intoCourt can be final. It was argued that the order here is final anywayto this extent, that it finally compels the applicant to do something,namely, to produce some money, but to accede to this argument would,it seems to me, be going far towards obliterating the distinction betweenwhat is final and what is interlocutory. Every interlocutory order isfinal in this sense that it has to be obeyed.
I would test it yet another way. The order came on appeal to thisCourt. Would the decision of this Court, whatever way it was given,
112 N. L. E. 367.3 2S.C. B. 54.
» 2 Bat. 67.* (Ml) 1 Q. B. 734.
MACDONELL C.J.—Lall v. Emmanuel,
have finally disposed of the matter in dispute? Clearly not. If thisCourt had discharged the order of the District Judge there would stillhave been the question, does applicant owe these monies to the estateor nob, and this Court having affirmed the order of the District Judge,precisely the same question still remains to be determined.
But there is yet a further difficulty about holding this order to be afinal one. Until the decree in the judicial settlement determines howmuch money, if any at all, the applicant must pay to the estate, it isdifficult to say what is the " value " of " the matter in dispute ", forit is conceivable that the amount the applicant may eventually be orderedto pay to the estate will be less than Bs. 5,000. Per Hutchinson C.J.in The Ceylon Tea Plantation Co., Ltd. v. Carry (supra). "It* is theamount which the appellant is ordered to pay which is the test; and itmay be that he will only be ordered to pay a sum less than Bs. 5,000."
For the foregoing reasons I am of opinion that the order appealedfrom does not come within the requirements of rule 1 (a) of schedule Ito Ordinance No. 81 of 1909, in that it is not final nor of the value offive thousand rupees, and that consequently leave to appeal against itto the Privy Council ought not to be granted.
Akbab J.—I agree.
LALL v. EMMANUEL