Mohamed Sheriff v. Muttu Natchia.
1932 Present: Garvin S.P.J, and Drleberg and Akbar JJ.MOHAMED SHERIFF v. MUTTU NATCHIA170—D. C. (Inty.) Kalutara, 1,031.
PrivyCouncil—Application • for conditionalleave—Judicialsettlement—Order
on executor to give list of mortgage bonds and other debts—Reasons fornon-recovery of debts—Final order—Ordinance No. 31 of 1909, rule 1 (a).In an application for judicial settlement by an executor the DistrictJudge, after dealing with the case of one mortgage bond, ordered the-e>ecutor to file a detailed list of the other bonds and debts of the estate,showing what steps he took and what amounts he recovered in each*case andthe reason for non-recovery. The SupremeCourt affirmed
Held (in an application for leave to appeal to the Privy Council)rthat the order had the effect of a final judgment and that the executor'was entitled to have leave to appeal.
PPLICATION for conditional leave to appeal to the Privy Council’from an order made in the course of an application for judicial’
settlement by an executor.
Choksy, for executor, appellant (with him Canekeratne and Jaya-wickrama).—The judgment is final because it finally determines theexecutor's liability to pay the estate a certain sum. Any proceedingswhich may take place hereafter in the lower Court cannot reduce his-liability to pay that certain sum.
Counsel cited Kurukal v. Kurukal 1 and Ceylon Tea Plantation Co.,v. Carry 2.
H.V. Perera, forrespondents.— There isno finalityin
respect of the matter which the Court had to adjudicateupon, though there is a final ascertainment of liability for anitem over Rs. 5,000. Till there is a judicial settlement of the whole-account the matter submitted^ viz., an account, is not finally settled.A decision in ordeV to be final must cover the whole area of the subjectmatter in dispute. “ Finally " means finally disposing of the wholeproceeding, affecting the whole area of litigation between tfie parties.
An order which determines only part of a case is not a final order'(Baiy Nath Dass v. Sohan Bibi et al. 3).
Finality is reached when decree is entered (section 740, Civil Procedure-Code).
Counsel cited 188 D. C. Jaffna, 5,870 (S, G. M., March 19, 1931)..and 128 D. C. Jaffna, 5,408 (S. C. M., May 29, 19.31).
Choksy, in reply.—Section 744, Civil Procedure Code, gives a right ofappeal from every order made under Chapter LV.
If judgment is "final’* within the meaning of the Privy Council rules,,then there is a right of appeal to the Privy Council.
As to the test whether a judgment is final or interlocutory, vide*Bozon v. Atkingham Urban District Coundl *.
» 31 N.L.R. 166.
* 12 N. L. R. 367.
3 SI AU> 645.
– (1903) 1 K. B. 547.
GARVIN 8.P.J.—Mohamet Sheriff v. Mvttu Natchia*
A judgment in appeal which finally determines the principal matterin dispute, even though further hearing is necessary in the Court belowbefore the action can be finally disposed of, is a final order appealableto the Privy Council (Saiyid Muzhar Hasseim v. Mussamat Bhoda Bibi ')
April 22, 1932. Garvin S.P.J.—
This application for conditional leave to appeal tb the Privy Councilwas first listed before my brother Maartensz and myself. After hearingargument we decided, in view of the difficulty of the question and itsimportance to the parties concerned, that the matter should be consideredby a larger Bench.
The applicant is one of the executors of the last will of S. M. L. WappusaMarikar, deceased. He appealed to this Court from an order made" bythe District Judge in a proceeding for the judicial settlement of certainaccounts filed by him upon the orders of the Court. It was not thefinal account of his administration. Several issues were framed and allthese were fully answered by the learned District Judge with the exception• of the 5th issue which was as follows:— .
“ Has the said executor fraudulently and negligently failed to recovermortgage bonds and other debts of the estate V* In the course of hisorder the learned District Judge considered and dealt with the case of■one bond and then proceeded as follows: —
‘‘ As regards the other bonds and notes,&c., theexecutoris ordered
to file a detailed list showing what steps he took and what amounts herecovered in each case and reason if any for non-recovery/’ In appealthe judgment of the learned District Judge was affirmed subject to aslight variation in regard to his finding on issue 2 and in regard to theorder for costs.
It was submitted on behalf of the applicant for leave thattheeffect
of the judgment of this Court in appeal isto placethe applicantunder
a liability to the estate in respect of sums of money considerably inexcess of Rs. 5,000 and that he is therefore entitled to appeal to the"Privy Council. It is not denied that the order of this Court has finallydetermined the liability of the executor to the estate in respect of sumsof money greatly in excess of Rs. 5,000. There is no question, therefore,that the matter in dispute is in excess of the pecuniary limit set to theright of appeal to the Privy Council. It was urged, .however, that thejudgment of the Court was not final within the meaning of rule 1 (a)■of the rules in schedule 1 of Ordinance No. 31 of 1909 regulating theprocedure on appeals to His Majesty in Council.
No decree has been entered judicially settling this account. Theorder of the District Judge directing the executor to account furtherin respect of other bonds, notes, &c., rendered it impossible to do so untilthis material had been furnished to the Court and considered by it.Further, the order of the Supreme Court in appeal bearing on the finding•of the District Court on issue 2 itself involves a further hearing,. If,therefore, the expression “ final judgment ” in rule 1 (a) means a judg-ment which finally and completely determines the action or proceeding, ••this is not a final judgment.
1 17 AU. 112.
GABVTN S.P.T.—Mohamed Sheriff t>. Muttu Natchia.SSL
The term “ judgment ” is defined in section 2 of the Ordinance asfollows:—“Judgment includes a decree, order, sentence, or decision.”This of itself is an indication that a judgment of this Court may befinal within the meaning of rule 1 (a) even though it does not completelydispose of the suit or proceeding.
Now, there is ample authority for the proposition that a judgment^of this Court may be a final judgment within the meaning of rule 1 (a)notwithstanding that before the action or proceeding is completely■disposed of some further inquiry may be necessary, such, for instance,as the taking of an account or the computation of the amount payableby one party to the other upon the basis of their respective right or rightsas determined by the judgment of this Court.
What then is a final judgment within the meaning of rule 1 (a). Thevery full and able arguments which have been addressed to us in thecourse of this case have served to emphasize the great difficulty andperhaps the unwisdom of endeavouring to give to the expression “ finaljudgment ” any clear-cut or scientifically accurate definition. One ofthe factors which contributes very largely to the practical difficultywith which we are frequently confronted is the circumstance that, underour Code of procedure, every order made by a District Court is appealableto this Court, except where the context indicates that a particular orderis an exception to that rule. There is provision in our Code which•enables the Court in cases where issues both of law and fact arise in thesame action to dispose of the issues of law, postponing the settlementof the issues of fact until after the issues of law have been determined.Further, our Code contemplates the joinder in one proceeding of severalcauses of action, so that in effect the Court is trying in one proceedingnot merely one action but a number of actions as between the sameparties. As a result, appeals are frequently taken to this Court fromorders of the District Court and the decisions given thereon in appealoften affect matters which in value exceed Rs. 5,000. Such decisionsthough they are binding upon the parties often necessitate the returnof the case- to the Court below for further proceedings and do not there-fore completely dispose of the action or proceeding, though they might,had the decision been in favour of the other party, have had that effect.Cases frequently arise in which the decision of the Court on the questionwhether or not a certain form of words in a will of deed creates a fideicommissum may in one view finally dispose of the action; in the oppositeview it may involve a further trial as to the prescriptive or other rights ^of the parties before the action can be finally determined. Notwith-standing that the decision of the Court of appeal on the question of theexistence or non-existence of a fidei commissum may be of vital importanceto the parties not only in respect of the property which is the subjectof the action but in respect of other allotments of land as well, it has-sometimes been found impossible to treat the decision as a final judgment•of this Court within the meaning of rule (1) (a).
In many of the cases falling within the classes above noticed thedecision in appeal may and often does conclusively determine the rightsand liabilities of parties in respect of a matter over Rs. 5,000 in value,and from that decision there is no appeal at any time to the Privy Council
882GARVIN S.P.J.—Mohamed Sheriff v. Muttu Natchia.
since the order of this Court is not a “ final judgment ” and there is noprocedure which enables the matter to be carried to the Privy Councileven when the whole proceeding has been brought to a conclusion afterfurther trial or inquiry. This Court has no original civil jurisdiction spthat in a large proportion of its judgments in appeal its order, while itdetermines the appeal, does not determine the action or proceeding.
An order of this Court in appeal which completely disposes of theaction or proceeding would, of course, clearly be a " final judgment ”and would be appealable to the Privy Council if the matter is of the valueof Rs. 5,000 or over. Similarly an order, which finally determines therights of the parties though it does not completely dispose of the actionin that it necessitates further proceedings upon the basis of the rightsas determined by the judgment in appeal, may be a final judgment.. Ithas even been held that a judgment in appeal which finally determinesthe principal matter in dispute between the parties even though itinvolves further hearing in the Court below before the action can becompletely disposed of is a final order and appealable to the Privy Council(vide Saiyid Muzhar Hasseim v.' Mussamat Bodha Bibi1).
Thus orders, other than those which completely dispose of the actionor proceeding in which it is made, may be final judgments within themeaning of rule 1 (a). It must depend upon the circumstances of eachcase whether the judgment in appeal can be said to have carried theaction to a stage at which it can fairly be said that a measure of finalityhas been reached in regard to the matter or matters at issue whichjustify it being treated as a final judgment within the meaning of therules regulating appeals to the Privy Council. Differences of opinionwill sometimes arise as to whether a particular judgment is a finaljudgment. This is inevitable in the present state of our law but thereremains the remedy of an application direct to the Privy Council forleave to appeal in any case in which the matter is thought to be ofsufficient importance to justify such a step.
The order under consideration was not made in a regular action butin the course of a special procedure for the judicial settlement of theaccounts of executors and administrators prescribed in Chapter LV. ofthe Civil Procedure Code. It would be most inconvenient and wrouldunduly protract the settlement of such accounts if every time a Courtgives a decision upon or in regard to any entry in such an account thereshould be an appeal to this Court and from this Court to the Privy-Council if it should happen that the item so allowed or disallowed amountsto Rs. . 5,000 or more. The Code does not contemplate such interimorders or the piecemeal determination of the several items of the accountsubmitted for judicial settlement. Section 744 permits an appealfrom every order or decree made under the provisions of this chapterto this Court. The orders contemplated are those which the .Court ispermitted by the provisions of the chapter to make, for example, undersections 726, 727, 735, &c. The decree is this decree judicially settlingthe account. If at the termination of the inquiry when the Judgeproceeds to consider its decision he thinks that a matter needs furtherelucidation or that further information is necessary in regard to any
i 17 All. 112.
MA(3D0NELL C..T.—Rodrigo v. Rodrigo.
matter or thing before the account can be settled he should set thematter down for the purpose and then make his order dealing once andfor all with the whole of the account.
Although in the case before us no decree for judicial settlement wasentered it is evident that the District Judge intended that his ordershould completely dispose of this account subject to the reservation ofcertain matters for consideration when the final account was filed. Theparties themselves appear to have taken the same view, for no objectionwas taken to the appeal to this Court. It is also evident that •'all themost important of the matters at issue have been dealt with, that theorders already made have definitely placed upon the exeoutor a liabilityto the estate in respect of sums considerably in excess of Rs. 5,000. thatthat liability will not be affected by the further proceedings necessitatedby the orders of this Court and of the Court below, and that the suspensionof such further proceedings which relate only to a few subsidiary matterswill not delay the final settlement of the accounts of this estate appreciablylonger than if a decree for judicial settlement had been entered.
In these circumstances the order of the Court below which has beentreated as a decree for judicial settlement subject to the reservation ofcertain matters to be dealt with at the settlement of the final accountshould I think continue to be treated as such and the order in appealnotwithstanding that it made a slight variation of the order of the Courtbelow may fairly be regarded as a final judgment and as such appealableto the Privy Council. The application is allowed.
Drieberg J.—I agree.
Akbar J.—I agree.
MOHAMMED SHERIFF v. MUTTO NATCHIA