013-SLLR-SLLR-1998-1-DE-COSTA-AND-OTHERS-v.-DE-COSTA-AND-OTHERS.pdf
CA
De Costa and Others v. De Costa and Others
107
DE COSTA AND OTHERS
v.DE COSTA AND OTHERS
COURT OF APPEALWEERASEKERA, J.,
WIGNESWARAN, J.
C.A. 767/88 (F)
A. 739/88 (F)
C. GALLE 3949/P
MARCH 31, MAY 16, JUNE 9 ANDJULY 2, 1997.
Partition Act 21 of 1977 – S. 48 (4) (a) (iv), 48 (5) and 67 – Special Leaveto Appeal – Dismissed – Is it a final order having the effect of a Final Judgment- Civil Procedure Code — S. 754 (1) and S. 754 (2) (5).
The question that arose for determination is whether the order made in termsof S. 48 (4) (a) (iv) of Act 21 of 1977 is a judgment within the meaning ofS. 754 (1) and S. 754 (5) of the Civil Procedure Code or an order made withinthe meaning of S. 754 (2) and 754 (5), read with S. 67 of the Partition Act 21of 1977.
108
Sri Lanka Law Reports
(1998) 1 Sri LR.
Held:
The finality of these orders must be determined according to the PartitionAct. Under the Partition Act if no complaint was alleged with regard tothe judgment and the consequential interlocutory Decree, and if no stepswere taken under S. 48 (1) (a), (iv) the Special Provisions relating toDecrees in S. 48 (1) (2) (3) and S. 67 of the Partition Law would cometo operate.
“In such a situation the only irresistible inference that could be drawn isthat such an order finally disposed of all the rights of the parties and thesuit was not alive but finally disposed of.“
If the order of the application of the appellants was in their favour, theresult would have been the variation of the judgment and interlocutorydecree and such a variation would have carried the same finality containedin S. 48 (1), (3) and S. 67 of the Partition Law.
APPEALS from an order of the District Court of Galle.
Cases referred to:
Siriwardene v. Air Ceylon – 1984 – 1 SLR 287.
Salaman v. Warner – 1891 1QB 734-737.
N. R. M. Daluwatte PC with Nilanthi de Silva for 5th and 12A defendant-appellants
in CA 739/88 (F).
S. Ediriweera for 21st defendant-appellant in CA 768/88 (F).
Francis Ekanayake for 5th defendant-respondent.
D. R. P. Gunatilake with S. Suraweera for plaintiff-respondent in both appeals.
C. S. Hettihewa with G. Pieris for 11th defendant-respondent in both appeals.
Cur. adv. vult..
August 29, 1997.
WEERASEKERA, J.
The plaintiff-respondents sought to partition the land calledKithulthuduwewatta alias Walawwatta morefully described in theschedule to the plaint.
CA
De Costa and Others v. De Costa and Others
(Weerasekera, J.)
109
On 08.09.87 when the action was taken up for hearing the partieswho were present and were represented informed court that they hadresolved their disputes regarding the corpus and devolution of interestsand accordingly after evidence was led judgment was pronounced.
Thereafter the 6th, 65th and 12A defendants and 21st defendantby petition and affidavit in terms of section 48 (4) (a) (iv) of the PartitionAct, No. 21 of 1977 made application for special leave to establishtheir right title and interest and to vary the judgment.
The learned District Judge of Galle after inquiry on 07.03.88dismissed the applications of the 6th, 65th, 12A and 21st defendants.These two appeals were from that order.
At the hearing of this appeal counsel for the defendant-respondentstook up as a preliminary question of law that the order dated 07.03.88was not a “final order" having the effect of final judgment under section754 (5) of the Civil Procedure Code and that an appeal does notlie direct to the Court of Appeal under section 754 (1) but only withleave of court first had and obtained in terms of section 754 (2) ofthe Civil Procedure Code.
I have given my best consideration to all the written submissionsfiled by parties.
It is not disputed that the learned District Judge made his orderdated 07.03.88 within the framework of section 48 (4) (a) (iv) of thePartition Act and that he had the jurisdiction to do so as envisagedby section 48 (5) of the Partition Act.
The question that arises for determination is whether the ordermade in terms of section 48 (4) (a) (iv) of the Partition Act by thelearned District Judge on 07.03.88 is a judgment within the meaningof section 754 (1) and 754 (5) of the Civil Procedure Code or an“order” within the meaning of section 754 (2) and 754 (5) of theCivil Procedure Code read with section 67 of the Partition Act.
Section 67 of the Partition Act provides for an appeal to the Courtof Appeal against any judgment, decree or order made or enteredin a partition action to which all the provisions of the Civil ProcedureCode shall apply accordingly.
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Sri Lanka Law Reports
(1998) 1 Sri LR.
Section 754 (1) provides that any person who shall be dissatisfiedwith any judgment pronounced by any original court in any civil action,proceeding or matter to which he is a party may prefer an appealto the Court of Appeal against such judgment for any error in factor in law.
Section 754 (2) provides that any person who shall be dissatisfiedwith any order made by any original court in the course of any civilaction, proceeding or matter to which he is or seeks to be a party,may prefer an appeal to the Court of Appeal against such order forthe correction of any error in fact or in law, with the leave of theCourt of Appeal first had and obtained.
Counsel for the respondents urged that the order of 07.03.88 wasan interlocutory order and not a judgment entered in terms of section184 of the Civil Procedure Code read with section 67 of the PartitionAct. On the other hand it was the appellants' case that the order of07.03.88 was an order having the effect of a final judgment containingthe final expression of its decision.
Section 754 (5) provides notwithstanding anything to the contraryin the Ordinance for the purposes of chapter LVIII "Judgment"means any judgment or order having the effect of a final Judgmentmade by any civil court and “order” means the final expression ofany decision in any civil action, proceeding or matter which is nota judgment.
It was held in the case reported in Siriwardene v. Air Ceylon Ltd.(1>that the tests to be applied to determine whether an order hasthe effect of a final judgment and so qualified as a judgment undersection 754 (5) of the Civil Procedure Code are:
It must be an order finally disposing of the rights of parties.
The order cannot be treated as a final order if the suit or actionis still left a live or action for the purpose of determining therights and liabilities of the parties in the ordinary way.
The finality of the order must be determined in relation to thesuit.
CA
De Costa and Others v. De Costa and Others
(Weerasekera, J.)
111
The mere fact that a cardinal point in the suit has been decidedor even a vital and important issue determined in the case isnot enough to make an order a final order.
In this case the order dated 07.03.88 was made under section48 (4) (a) (iv) of the Partition Act. The finality of the orders must bedetermined according to the Partition Act. Under the Partition Act ifno complaint was alleged with regard to the judgment of 08.09.87and the consequential interlocutory decree and if no steps were takenunder section 48 (4) (a) (iv) the special provisions relating to decreesin section 48 (1), (2) and (3) and section 67 of the Partition Law wouldcome to operate. In such a situation the only irresistible inference thatcould be drawn is that such an order finally disposed of all the rightsof the parties and the suit was not alive but finally disposed of.
I would in those circumstances prefer to apply the testformulated by Lord Esher MR in the case of Salaman v. Warned.He said:
“The question must depend on what would be the result of thedecision of the Divisional Court, assuming it to be given in favourof the parties. If their decision whichever way it is given, will ifit stands finally disposed of the matter in dispute, I think for thepurpose of the Rules it is final. On the other hand, if their decisionif given in one way will finally dispose of the matter in disputebut if given in the other will allow the action to go on then I thinkit is not final but interlocutory".
In doing so if the order of the application of the appellants wasin their favour, the result would have been the variation of the judgmentand interlocutory decree and such a variation would have carried thesame finality contained in section 48 (1), (2) and (3) and section 67of the Partition Law.
Therefore looking at it from both points of view the irresistibleconclusion that I could come to is that the orders on the applicationsof the defendant-appellants dated 07.09.88 made by the learnedDistrict Judge of Galle disposed of their rights finally and determinedtheir rights and liabilities under the Partition Act with finality.
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Sri Lanka Law Reports
(1998) 1 Sri LR.
The orders dated 07.03.88 which were appealed from, in myview were final orders, from which orders final appeals in terms ofsection 754 (1) of the Civil Procedure Code would be available.
In those circumstances I reject the objections of the defendant-respondent to the final appeals lodged by the 6th, 65th, 12A and 21stdefendant-appellants under section 754 (1).
The 6th, 65th, 12A and 21st defendant-appellants will be entitledto taxed costs of this inquiry from the 3rd defendant, plaintiff-respondent and 11th defendant-respondent.
The appeals will now be fixed for argument in due course.WIGNESWARAN, J. – I agree.
Preliminary objection overruled.