DALTON A.C.J.—Seeman Pillai v. Sadanathakurnkal.
1933Present: Dalton A.C.J. and Koch AXSEEMAN PILLAI v. SADANATHAKURUKAL.
197—D. C. Jaffna, 16,400.
Privy Council—Application for conditional leave—Order refusing interventionin partition action—Final judgruent—Ordinance No. 31 of 1909, rule1 (a) and s. 4.
An order refusing intervention in a partition action is a final judgmentwithin the meaning of rule 1 (a) of the Privy Council (Appeals) Ordi-nance.
An intervenient in a partition action is a party to a civil suit or actionwithin the meaning of section 4 of the Ordinance.
^^PPLICATION for conditional leave to appeal to the Privy Council.
H. V. Perera (with him Kandiah), in support.
N. E. Weerasooria (with him Subbramaniam), for seventh, eighth,'and ninth added defendants, respondents.
June 26,1933. Dalton A.C.J.—
This is an application by the substituted intervenient in a partitionaction, whose intervention has been refused, for conditional leave toappeal. It is not denied that the matter in dispute, a 5/6th share in theland to be partitioned, is of the value of upwards of Rs. 5,000. It isurged however against the application, first that the order appealedfrom is not a final judgment of this Court within the meaning of rule 1 (a)of the Schedule to Ordinance No. 31 of 1909, and secondly that proceed-ings under the Partition Ordinance are not “civil suits'or actions” andan intervenient is not a party to a civil suit or action within the meaningof section 4 of the Ordinance.
Mr. Weerasooria, for the eighth and ninth added defendants-respondents,concedes as regards the second point that appals have been taken to thePrivy Council against judgments arising out of proceedings in partition,proceedings also that precede the issue of an interlocutory decree. Avery recent case of this kind is Weerasekera v. Peiris and there are others.In Hussan v. Peiris2 it was held that a partition action is a proceedingcoming within the meaning of the word * action * as given in section 3of the Courts* Ordinance, 1889, and in section 5 of the Civil ProcedureCode. I have no doubt that it comes within the term ‘ action' as usedin section 4 of Ordinance No. 31 of 1909. Apart from other reasons forthis conclusion, it would be highly inconvenient, as pointed out by BertramC.J. in Subramaman Chetty v. Soysas, if the word1 action * in this Ordinancewere given a different meaning from that which is given to it in the Code.
I am satisfied also that an intervenient is a party to a civil suit or actionwithin the meaning of section 4 of the Ordinance.
On the first point, it is not denied that the judgment appealed fromfinally decided the rights of the appellant in respect of his claim to aninterest in the property to be partitioned. It is true an interlocutorydecree in the partition proceedings may follow upon the judgment, but1 2 C. L. W. 99.-,2 34 N. L. R. 238.
« 25 N. L. R. at p. 348.
DALTON A.C.J.—Wijeyriianne v. Kandiah.
it is nevertheless a judgment which has finally decided the rights of theparties-on the principal question at issue between them. That is thetest that has to be applied in considering this question as laid down bythis Court in Raldhamy v. Dinohamy1 and other cases.
In the notes to Order 58, r. 3, on the subject of appeals (AnnualPractice) will be found several English decisions on the question of whatis a final or interlocutory judgment or order. For the purpose of thiscase, all that it is necessary to call attention to is that the effect of thedecisions is that all orders which decide the rights of the parties, thoughmade on applications interlocutory in form, are to be treated as finalwithin that rule.
The order appealed from is, in my opinion, a final judgment of the Courtin which the matter in dispute on the appeal amounts to or is of thevalue of Rs. 5,000, and the petitioner is therefore entitled as of right toleave to appeal. Conditional leave will therefore be granted, on theusual terms. Petitioner is entitled to the costs of this application.
Koch A.J.—I agree.
SEEMAN PILLAI v. SADANATHAKURUKAL