KOCH J.—Baron Appuhamy v. Tivanahamy.
1938Present: Koch 3.
BARON APPUHAMY v. TIVANAHAMY.
50—C. R. Badulla, 8,755.
Courts of Requests—Order setting aside judgment by default—Not a finalorder.
An appeal does not lie from an order of the Courts of Requests settingaside a judgment entered by default.
^^PPEAL from a judgment of the Commissioner of Requests, Badulla.
P. Thiagarajah, for plaintiff, appellant.
W. E. Abeykoon, for defendant, respondent.
July 4, 1938. Koch J.—
Judgment by default was entered in this case against the respondentwho later appeared before the Court, and, having shown cause, succeededin obtaining an order setting aside the judgment so entered. An appealhas been preferred from that order on two grounds—
that the judgment agairist the respondent was not one by default,
but entered inter partes, and that, therefore, the Court had nopower to vacate it;
that the cause shown by the defendant was insufficient in law to
excuse his default.
A preliminary objection has been taken by the respondent’s Counselthat no appeal lay from the order setting aside the judgment by default,as this order was not final. He cited the case of Lebbe v. Appuhamy1 Ithink that there is substance in'the. objection, although the case citeddoes not appear to deal with a situation such as has arisen here.
Under sections 39 and 80 of the Courts Ordinance, No. 1 of 1889, anappeal is permitted from a final judgment or order or from any orderhaving the effect of a final judgment pronounced by a Court of Requests.But judgment by default can scarcely be considered to be a final judgmentnot only in view of the fact that the defendant is permitted by section823 (3) of the Civil Procedure Code to appear within reasonable time, arid,on sufficient cause shown, to have such judgment set aside and to open upproceedings afresh in the Court of Requests itself, but also in view of theexpress denial to the defaulting defendant of the right of appeal by reasonof section 823 (6) of the Civil Procedure Code.
It was argued in Nonohamy v. Divunhamy s that as a judgment by■default was not a final order no appeal lay from an order refusing to setaside such judgment, but it was held that an appeal would lie as the effectof a refusal to set aside such a judgment was to invest such judgment withfinality.
The present is the converse case. Here the Commissioner has set asidethe judgment by default and the question for consideration is whetherthis order setting aside the judgment by default partakes of the characterof a final order or not.
1 li Cei/Jnn Law Itec. 14.2 2~> N. L. R. 414.
DE KRETSER J.—Bakelman v. de Silva.
It has been held in Karonchihamy v. Angohamy1 that a “final judg-ment has been variously interpreted”, and in Vairavan Chetty v. UkkuBanda1 Jayawardene A.J. held that it was impossible to give a compre-hensive definition of the term “final judgment”, and that what such ajudgment is must depend on the circumstances of the case. It may,however, be sometimes possible to apply a rough and ready test, namely,has the actual matter in dispute between the parties been finallyconcluded?
Applying this test, it is clear that the effect of the order of the Com-missioner setting aside the judgment by default, far from introducingfinality to the proceedings, permits the defendant to put his defencebefore the Court. Finality, in these circumstances will be reached onlywhen after trial a decree is entered.
For these reasons, therefore, I am of opinion that an appeal will not liefrom the order setting aside the judgment entered by default.' The appealis dismissed with costs.
BARON APPUHAMY v. TIVANAHAMY