095-NLR-NLR-V-48-ARLIS-APPUHAMYet-al.-Appellants-and-SIMAN-Respondent.pdf
298
Arlis Appuhamy v. Simon.
1947Present: Dias J.
ARLIS APPUHAMY et al., Appellants, and SIMAN,Respondent
78—C. R. Matara, 495
Court of Requests—Execution of decree—Resistance to execution—Order undersection 330, Civil Procedure Code—Final order—Courts Ordinance s. 36.
An order made by a Commissioner of Requests under section 330of the Civil Procedure Code is a final order for the purposes of an appeal.
Marikar v. Dharmapala (.1934) 36 N. L. R. 201 followed.
A PPEAL from a judgment of the Commissioner of Requests, Matara.
. H. W. Jayewardene, foT 5th to 10th defendants, appellants.
B. WikramanayaJce (with him Vernon, Wijetunge), for plaintiff,respondent.
Cur. adv. vult.
DIAS J.—-Artis Appuhamy v. Simon.299
July 2, 1947. Dias J.—
In this action the plaintiff sued for a declaration of a right of cartway,or in the alternative for a right of way by necessity over the land of the1st to 4th defendants, who are the 1st to 5th respondents to this inquiry.The plaintiff in his prayer also asked that, in the event of his beingsuccessful, he be placed and quieted in the possession and enjoymentof the said right of way. In November, 1941, decree was entered in hisfavour and he was declared entitled to a right of way three feet widethrough the land Bingegawa Watta, and also to a cartway eight feetwide over the said land on payment of compensation as depicted in PlanNo. 552, dated February 17, 1940. It was also ordered and decreed“that the plaintiff be placed and quieted in the possession of the saidpath and cartway ”. There was an appeal against that decree whichwas affirmed by the Supreme CoUrt in February, 1943. When theplaintiff attempted to obtain execution of his decree it was discoveredthat obstructions had been placed on the land making it impossible forhim to enjoy his right of way. During the pendency of the action someof the defendants had transferred their interests in the land to the 5thto 8th respondents to this appeal. Admittedly, the 9th and 10threspondents are squatters and, therefore, trespassers. Proceedings undersection 325 of the Civil Procedure Code were then taken against therespondents and after inquiry the learned Commissioner of Requeststreated the case as coming under section 330 of the Civil Procedure Codeand directed that the writ should be re-issued for execution. He furtherheld that “if the respondents 5th to 10th have any real interests, theycan adopt the course indicated in section 330 ; but they are herebyordered not to resist delivery of the path and cartway by the Fiscal’sofficer to the petitioner ”. He also ordered that the 5th to 10threspondents should pay the costs of the inquiry which he fixed atRs. 20. From that order the respondents appeal.
Mr. E. B. Wikramanayake for the plaintiff has taken the preliminaryobjection that no appeal lies in this case, as the order appealed against isnot a final judgment or order having the effect of a final judgment withinthe meaning of section 36 of the Courts Ordinance, inasmuch as an orderre-issuing a writ of execution in a Court of Requests action cannot becalled a final judgment or order.
The 5th to the 10th respondents are not bound by the decree in themain action, which was the final judgment entered in the case. Section330 under which the Commissioner purported to act indicates that heconsidered that these respondents, excepting the 9th and 10th respondents,were not in occupation of the land over which the right of way runs.Section 330 (2) provides that “The party against whom such order ispassed (i.e., under section 330 (1) ) may within one month institute anaction to establish the right which he claims to the present possession ofthe property, but subject to the result of such action, the order shall hefinal”.
In the case of Amolis Fernando v. Selestinu Fernando1 Bertram C.J.held that an order made by a Court of Requests on an application under
i (1922) 4 C. L. Ree. 71.
300
DIAS J.—Arlis Appuhamy v. Siman.
section 326 of the Civil Procedure Code is not an appealable order, andhe expressed the view that an order which has the effect of a final judg-ment within the meaning of section 36 of the Courts Ordinance wouldbe some order which has some effect upon the original action whichpractically disposes of the issues in the action, but leaves certain othermatters to be worked out by calculation or in some purely ministerialmanner. This view was dissented from by Garvin J. in Marikar v.Dharmapala Unanse1 who held that where a stranger to the decreeclaimed possession of the premises in respect of which the writ of possessionwas issued in his own right and the resistance offered by him was notat the instigation of the judgment debtor but in assertion of his ownrights, an order rejecting his plea and committing him to prison deter-mines the proceedings in which the order was made, and would beappealable as such. Garvin J. further held that the words in section 36of the Courts Ordinance could not be limited to orders made in the originalaction. He held that after the decree in a Court of Requests action,there may be execution proceedings in which judgments having theeffect of final judgments may be passed. Garvin J. adopted the testsuggested by A. St. V. Jayewardehe J. in Vyraven Chetty v. Ukkubanda3that a judgment or order which can be considered on appeal at a laterstage of the proceedings, that is when the case is finally decided, doesnot fall within the term “ final judgment ”; but an order which can neverbe so brought up in appeal is a final judgment. I would respectfullyfollow the principle laid down in Marikar v. Dharmapala Unanse. (supra).Applying this test it seems to me that the order of the Commissioner ofRequests in this case is a final judgment as between the plaintiff and the5th to 10th respondents so far as this case is concerned. If the respond-ents do not file the action contemplated by section 330 (2) the ordermade is deemed to be final. If . they file the action and lose it, theywill have to appeal in that case. They cannot take any further stepsin the present case. I am, therefore, of opinion that the preliminaryobjection fails.
On the merits, I do not think the appellants can agitate the questionas to whether the relief claimed by the plaintiff in a right of way actionfalls under sections 217 (C), (E) or (G) of the Civil Procedure Code. Truethe appellants are not bound by the decree in the main action, but thatdecree was in accordance with the relief claimed in the plaint, and thatdecree having been affirmed in appeal is now a decree of this Court.Under that decree the plaintiff was entitled to a writ of possession.Furthermore, some of the appellants derive their title from deedsexecuted by the defendants to the action during the pendency of thataction. Plaintiff not having registered the lis pendens, they are notbound. They have now been given the right to show, if they can do so,that the plaintiff cannot have a right of way over this land. In thesecircumstances I see no reason to interfere with the decision arrived at bythe learned Commissioner of Requests.
I dismiss the appeal with costs.
Appeal dismissed.
» (193i) 36 N. L. B. 201.
(1924) 27 N. L. B. 65.