Marikar v. Dharmapala Unnanse.
Present; Garvin SPJ,
MARIKAR V. DHARMAPALA UNNANSE.
79—C. R. Ratnapura, 2£49.
Appeal—Order of Court of Requests committing a person obstructing a iorii ofpossession—Final order—Courts Ordinance, No. 1 of 1889, s. 39,
An order made by a Court of Requests under section 326 of the CivilProcedure Code committing to prison a person who had obstructed theexecution of a writ of possession is an order having the effect of a finaljudgment from which an appeal lies to the Supreme Court.
PPEAL from an order of the Commissioner'of Requests, Ratnapura,
committing the fourth respondent to prison for obstruction allegedto have been caused by him to the execution of a writ of possession bythe Fiscal.
H. N. G. Fernando, for plaintiff, respondent, raised a preliminaryobjection to the hearing of the appeal. On the day the order appealedfrom was made the appellant was not represented by a proctor nor washe present himself. Judgment was therefore entered for default ofappearance. Section 823, sub-section (2), says that in Courts of Requests“ no appeal shall lie against any judgment entered under this section fordefault of appearance
[Garvin J.— If the order appealed against is not a final order, has theappellant a right of appeal in a Court of Requests case?]
The order appealed against is not a final order. In Amolis Fernandov, Selestinu Fernando1 it was held that an order under section 326 ofthe Civil Procedure Code committing a person who is not a party to theoriginal action to prison for obstruction was not a final order nor anorder having the effect of a final judgment.
J.R. Jayewardene, for the appellant, was called upon to reply onthe objection.
Section 823, sub-section (2), does not apply as this order was not madeunder that section. The section says, “no appeal shall lie ….
against orders made under this section i.e., section 823. This order wasnot an order made for default of appearance but an order purportingto be made under section 326 for resistance to the execution of aproprietary decree.
It is submitted an appeal does lie from such an order. Section 39of the Courts Ordinance gives the Supreme Court jurisdiction to correct“ all errors in fact or in law which shall be committed by any Court ofRequests in any final judgment or any order having the effect of a finaljudgment ”. Section 80 of the same Ordinance gives “ a party dissatis-fied with any final judgment, or any order having the effect of a finaljudgment ”, pronounced by a Court of Requests the right to appeal,except “ where such right is expressly disallowed,”.
Ordinance No. 12 of 1895, section 13 (1), refuses the right of appeal from“ any final judgment, or any order having the effect of a final judgment ”,pronounced by the Commissioner of Requests, “ in any action for debt,
14 C. L. R. 70.
GARVIN J.—Marikar v. Dharmapala Unnanse.
damage or demand ”, unless upon a matter of law or with leave. Thisorder would not come under that section. The only question thereforeis whether the order appealed against was a final judgment or an orderhaving the effect of a final judgment. The case cited Amolis Fernandov. Selestinu Fernando (supra) takes too narrow a view of what is a finaljudgment.
In Vyraven Chetty v. Ukku Banda* Jay e war dene A.J. took a broaderand a more correct view of what is a final judgment. He says, “ ajudgment or order which can be considered on appeal at a later stage ofthe proceedings, that is when the case is finally decided, does not fallwithin the term ‘ final judgment,’ but an order which can never be sobrought up in appeal is a final judgment This order is not an incidentalorder but is final as against the party affected. See also Per era v. NovisHamy
On the facts the appellant was hot a defendant in the action andthe defendants themselves have been discharged. The inference is thatthe appellant was not acting at the instigation of the defendant orjudgment-debtor, but independently. If so, section 326 does not applyto him (see Seneviratne v. Kurer'a8).
Fernando, in reply.
Cur. adv. vult.
September 7, 1934. Garvin J.—
Upon a petition filed by the judgment-creditor in this case against thedefendants to the action and two other persons, the learned Commissionermade order under the provisions of section 326 of the Civil Procedure Codecommitting the fourth respondent to prison for 30 days for the obstructionalleged to have been caused by him to the execution of a writ of posesssionby the Fiscal. The fourth respondent now appeals. A preliminaryobjection has been taken to the appeal which is that this is not an appeal-able order. It was urged that an appeal only lies against a final judgmentof the Court of Requests or against an order made by that Court whichhas the effect of a final judgment. On a first impression I should havethought that an order under section 326 committing a person who is aparty to the original action to prison for obstruction was a final order.But Counsel for the respondent relied upon the judgment of Bertram C.J.in the case of Amolis Fernando v. Selestinu Fernando *, in which a similarobjection was upheld by him, who observed in the course of his judgment,“ It would be straining words to declare that an incidental order on amatter of this sort arising in the course of execution proceedings is anorder having the effect of a final judgment. I think that by these wordssomething more substantial is meant, some order which has some effectupon the original action.”
Now the appellate jurisdiction of this Court as defined in section 39of the Courts Ordinance extends “to the correction of all errors in factor in law, which shall be committed by any Court of Requests in -anyfinal judgment or any order having the effect of a final judgment Itwill be noticed that there are no words which, limit the words “any
* 27 N. L. R. 60.■ B Brown 207.
a 29 N. L. R. 242.*4 0. L. R. 70.
GARVIN —Marikar v. Dharmapala Unnanse.
order having the effect of a final judgment ”, to orders made in the originalaction as distinct from orders made in the course of proceedings arisingout of the original action and affecting rights of persons who were notparties to the original action. In this case the appellant was a strangerto the original action. He is not affected by the decree entered in thecase and he claims the possession of the premises in respect of whichthe writ of possession was issued in his own right and that the resistanceoffered by him was not at the instigation of the judgment-debtor, but*inassertion of his own rights. An order rejecting his plea and committinghim to prison determines the proceedings in which the order was madeand such an order is a final order and would be appealable as such unlessit be held that the words “ any order having the effect of a final judgment ”must be limited to orders made in “ the original action In the absenceof a clear indication of such an intention, I see no reason to construe thewords in that sense, for I cannot think that it was the intention of thelegislature to deny to persons who were not parties to the original actionwhose rights are affected by final orders made in proceedings arising outof the original action the right to appeal to this Court. All orders madeby District Courts are subject to appeal. In the case of Courts of Requeststhe appellate jurisdiction is no doubt limited to final judgments or ordershaving the effect of final judgments. In the result, parties to an actionin the Court of Requests cannot appeal from any of the orders made inthe course of the proceedings, and before the rights of the parties aredetermined by a final judgment until such final judgment has been entered.At that stage an appeal may be entered and an opportunity is therebyafforded to impeach the judgment by impeaching some order made in thecourse of the proceedings from which an appeal at an earlier stage wasnot available. But subsequent to the entry of the final judgment deter-mining the rights of the parties, as for instance, in the execution of thejudgment, other proceedings may be taken in which orders having the .effect of final judgments may be passed.
In the case of Vyraven Chetty v. TJkku Banda1 Jayewardene A. J.f whenconsidering an objection to an appeal based upon the ground that theorder did not come within the words earlier referred to, expressed theopinion that “ a judgment or order which can be considered on appeal at alater stage of the proceedings, that is when the case is finally decided,does not fall within the term ‘ final judgment * but an order which cannever be so brought up in appeal is a final judgment ”. The test thereinindicated appears to me to offer a sounder test as to what may be deemedan order having the effect of a final judgment. As I have already said,orders made in the course of the proceedings and before the stage offinal judgment is reached can always be considered when an appeal istaken from the final judgment. But a proceeding such as this is subse-quent to the stage of the decree which determines the rights of the parties,and can never come under review by the Appellate Court in an appeal froma decree in the case or any other final judgment. In the case referred to,the appeal was by a person who had bound himself as surety for thesatisfaction of a judgment by the judgment-debtor who had been arrestedon a civil warrant in an application by him to have an order directing
1 27 N. L. R. 65.
GARVIN J.—Marikar v. Dharmapdla Unnanse.
the issue of writ against him recalled. Then again in the case of Perera v.Novis Hamy1 Schneider J. held that an order of a Court of Requestsadjudicating on an issue relating to the satisfaction of decree was onehaving the effect of a final judgment.
With all respect, therefore, I differ from the view expressed by BertramC.J. and hold that in such a case as this an appeal lies.
Interlocutory Order was made on the petition of the judgment-creditorand was served on the respondents. On November 8, 1933, the respond-ents appeared. The first and second respondents stated that they hadvacated the premises. The third respondent said that he had beenasked by the fourth respondent to repair the house standing on thepremises, and fourth respondent wished to show cause. The petitionerthrough his proctor stated that he claimed no relief against the firstand second respondents and they were discharged. Inquiry into the com-plaint against the third and fourth respondents was fixed for December6. On that day the respondent was absent. The inquiry proceeded.
The judgment-creditor gave evidence and the Commissioner madeorder granting “ the prayer in the petition ”. On the following day appli-cation was made to the Court by the fourth respondent, praying thatthe above order be set aside. This application was considered andgranted.on February 6, 1934, and the matter of the judgment-creditor’spetition again fixed for inquiry on May 28, 1934. Once again the fourthrespondent was absent. He sent a report to the effect that he was ill.The Judge then made order as follows,: —
“ The prayer in the petition will be granted and the fourth respondentbrought up on attachment to be committed to prison Unless a certificatefrom a qualified Medical Officer is produced on or before April 4.” Hefurther directed the District Medical Officer stationd at Kahawatta toreport whether fourth respondent was well enough to attend Court onMarch 28.
On April 4 no medical certificate was produced by the fourth respond-ent. The District Medical Officer of Kahawatta reported that heexamined the fourth respondent on March 28 and that he was then wellenough to have attended Court that day. In terms of his conditionalorder dated March 28, the Judge granted the petitioner the relief heprayed for and directed that the fourth respondent be committed toprison for 30 days.
It is from this order the respondent appeals. The appellant has hadevery indulgence shown him. Despite this he deliberately absentedhimself again, and when given a further opportunity to satisfy the Courtthat this plea of illness was^true, failed to avail himself of the indulgenceextended to him. It is obvious that his purpose was to delay the deter-mination of the matter and thereby prevent the judgment-creditorobtaining the relief he claimed. It is said he had no opportunity toprove his defence. The fact is that he had every opportunity. He haselected to obstruct and delay the proceedings instead of placing his defence,if any, before the Court, and must take the consequences. The Judgewas quite right in refusing any further indulgence and going on with thematerial before him.
» 29 N. L. R. 242.
AKBAB J.—Ruben v. Sheenghye.
1 am compelled, however, to admit the argument that upon the materialbefore him it is not possible to say that the obstruction complained of bythe petitioner was caused by the fourth respondent at the instigation ofthe first and second defendants. The facts spoken to by the petitionershow that it was the fourth respondent who was responsible for theobstruction and that it was he who instigated the first and seconddefendants to offer resistance to the execution of the writ of possession.It is only when the obstruction or resistance complained of is occasionedby the judgment-debtor or by some person at his instigation that a Courtmay commit the judgment-debtor or such other person to prison—videsection 326.
The order committing the appellant to prison cannot therefore besustained.
The evidence before the Judge strongly indicates, if it does not prove,that the appellant has no title to the premises and that his resistance wasnot bona fide, but purely perverse and obstructive. In his petition ofappeal he states, however., that he is ready “ to file a civil action to settleall disputes in connexion with the land ”. He will now have the oppor-tunity he desires. So much of the order of the Commissioner as directsthat the appellant be committed to prison for 30 days is set aside.