Development Finance Corporation (D.F.C.C. Bank Ltd.) v
Somaweera (Gamini Amaratunaa. J.) ■
NANDAWATHIE AND ANOTHERCOURT OF APPEALDISSANAYAKE, J.
CA 139/98 (F)
D.C. KALUTARA 4619/PMARCH 8, 2002,
JULY 26, 2002 ANDSEPTEMBER 11,2002
Civil Procedure Code – S. 189, S. 754 (1), Judgment Notice of Appealrejected – Schedule of Shares filed – Errors in the Judgment alleged -Dismissal – Order or Judgment – Partition Law 21 of 1977 – S.48 (4) .
The Judgment dated 8.11 1996 was delivered on 20.12.96. Notice of Appealwas rejected as being out of time. Notwithstanding the rejection, a Petition ofAppeal was filed on 19.2.97. Schedule of shares was tendered on 29.4.97 andinterlocutory Decree signed. The defendant-appellant by his Petition of 7.8.97sought to find errors in the Judgment and also averred that the schedule ofshares is not in keeping with the judgment. The trial Judge after Inquiry byhis order of 17.2.98 dismissed the petition. The 5th defendant-appellant pre-ferred an appeal. The plaintiff-respondent contended that the said Order is nota final order, therefore appeal does not lie.
The Judgment was delivered on 20.12.96 and Interlocutory Decree wassigned on 29.4.97, thereby deciding the rights of parties.
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Rights of parties had been disposed finally before the order on thedefendant-appellants petition was made on 17.2.98, the suit was notkept alive to determine the rights of parties, but kept alive only for thepurpose of partitioning the corpus.
The 5th defendant-appellant whose notice of appeal was rejected is try-ing to do the same thing indirectly by attempting to show that the trialJudge has made errors in his judgment and thereby was attempting toget his shares accepted. The Petition was not to bring the decree inconformity with the Judgment but to correct the alleged errors in theJudgment. The order dated 17.2.1998 is not a Judgment or an orderhaving the effect of a Final Order.
APPEAL from the District Court of Kalutara.
Cases referred to:
. 1. Siriwardena v Air Lanka Ltd., 1984 3 Sri LR 286
Ranjit v Kusumawathie and Others – 1998 3 Sri LR 232 at 238
Wijesundera v Herath Appuhamy and Others 67 CLW 63
Charietuma v Batur- SC 81/98 SCM 8.9.88
Vijith Singh for 5th defendant-appellant
N.R.M. Daluwatte P.C., with Gamini Silva for plaintiff-respondent and 3rd
Cur adv vult
February 25, 2002
SOMAWANSA, J.When this appeal was taken up for hearing the learned 01President’s Counsel who appeared for the plaintiff-respondent andthe 3rd defendant-respondent raised a preliminary objection to theeffect that a direct appeal under Section 754(1) of the CivilProceudre Code is not the proper procedure in the circumstancesof this case.
The relevant facts of this case are; after a inter parties trial, thejudgment of the learned District Judge dated 8.11.1996 was deliv-ered on 20.12.96 and a notice of appeal was rejected as being outof time by one day. Notwithstanding the rejection of the notice of 10
Chandrasena v Nandawathie and another (Somawansa, J.)
appeal a petition of appeal was filed on 19.02.1997. It appears thelearned District Judge in delivering his judgment on 20.12.96 didnot give the schedule of shares of the parties who were entitled tothe corpus but stated that once the schedule of shares is filed andif it is in conformity with the judgment, it would be treated as part ofthe judgment and interlocutory decree should be entered.Thereafter according to journal entry 103, on 24.4.97 schedule ofshares had been tendered and according to journal entry 104, on29.04.97 interlocutory decree was signed. As per journal entry 105on 25.08.97 three copies of the interlocutory decree were tendered 20for singature as the original was not clear due to certain correctionseffected by pen. These copies were examined and found to be inorder and were signed by the learned District Judge. In the samejournal entry and on the same day there is also a minute to theeffect that a petition being tendered by the 5th defendant-appellanttogether with an affidavit. This bears the date stamp 07.08.1997. Bythis petition the 5th defendant-appelant not only sought to finderrors in the judgment delivered in the instant case but also averredthat the schedule of shares as given by the plaintiff-respondent isnot in keeping with the judgment and proceeded to give his own 30schedule of shares. The learned District Judge after inquiry by hisorder dated 17.02.98 dismissed the said petition of the 5th defen-dant-appellant. It is from the said order that the 5th defendant -appellant has preferred this appeal.
It was contended by the counsel for the plaintiff-respondentand the 3rd defendant-respondent that the said order of thelearned District Judge dated 17.02.98 does not have the effect ofa final judgment and therefore direct appeal under section 754(1)of the Civil Procedure Code does not lie and the proper procedurewould be to file an application for leave to appeal. The relevant sec- 40tion which deals with this question is section 754 (1) (2)and (5).
754. (1) “Any person who shall be dissatisfied with anyjudgment pronounced by any original court in any civilaction, proceeding or matter to which he is a party mayprefer an appeal to the Court of Appeal against suchjudgment for any error in fact or in law.
(2) Any person who shall be dissatisfied with any order
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made by any original court in the course of any civilaction, proceeding, or matter to which he is or seeks to bea party, may prefer an appeal to the Court of Appealagainst such order for the correction of any error in factor in law, with the leave of the Court of Appeal first hadand obtained.
(5) Notwithstanding anything to the contrary in thisOrdinance, for the purposes of this Chapter –
“Judgment” means any judgment or order having theeffect of a final judgment made by any civil court; and
“order” means the final expression of any decision in anycivil action, proceeding or matter which is not a judg-ment.”
The provisions contained in the said Sections were consid-ered in the case of Siriwardena v Air Lanka Ltd.V)
Where the appellant had filed an application for leave toappeal from an Order of the District Judge made undersection 189 of the Civil Procedure Code directing theamendment of a decree and the question was whethersuch an order is one having the effect of a final judgmentof a civil court for the purpose of determinig whether thecorrect procedure should have been a direct appeal andnot an application.for leave to appeal.
It was held, to decide whether a party dissatisfied with theorder of a civil court should lodge a direct appeal underSection 754 (1) of the Civil Procedure Code or appealwith the leave of Court first had and obtained underSection 754 (2) of the Civil Procedure Code the defini-tions of “judgment” and “order"’ in section 754 (5) shouldbe .applied.
In view of the definition in section 754 (5) of the CivilProcedure Code the procedure of direct appeal is avail-able to a party dissatisfied not only with a judgmententered in terms of section 184 of the Civil ProcedureCode but also with an order having the effect on a finaljudgment, that is, a .final order. Orders which are not judg-
CA Chandrasena v Nandawathie and another (Somawansa, J.)141
merits under Section 184 of the Civil Procedure Code orfinal orders are interlocutory orders from which a partydissatisfied can appeal but only with leave to appeal.
The tests to be applied to determine whether an orderhas the effect of a final judgment and so qualifies as a
judgment under section 754(5) of the Civil Procedure. Code are
It must be an order finally disposing of the rights of theparties.
The order cannot be treated as a final order, if the suitor the action is still left a live for the purpose of determin-ing the rights and liabilities of the parties in the ordinaryway.
The finality of the order must be determined in relationto the suit.
The mere fact that a cardinal point in the suit has been -decided or even a vital and important issue determined
in the case, is not enough to make an order a final one.
By these tests an order amending a decree made underSection 189 of the Civil Procedure Code is a final order.Hence the appellant’s application for leave to appeal wasmisconceived and could not be entertained.
It could be seen that in the instant case where the 5th defen-dant-appellant tendered his petition and affidavit which bears thedate stamp 07.08.97, Interlocutory decree had been signed bythe learned District Judge and the rights of the parties decided andthe action was not a live suit in respect of the shares of the co-own-ers. The judgment in the instant case was delivered on 20.12.1996and the interlocutory decree was signed on 29.04.97 thereby decid-ing the rights of parties to the land sought to be partitioned and alsofulfiling the requirements of the tests initiated in Siriwadena v AirLanka Ltd. (supra). In that the rights of parties had been disposedfinally before the order on the 5th defendant-appellant’s petitionwas made on 17.02.98. and the suit was not kept alive to determinethe rights of parties but kept a live only for the purpose of partition-ing the corpus.
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It would also be pertinent at this stage to examine the petitionfiled by the 5th defendant-appellant and the relief he is seeking.Paragraphs 7,8.9,10,12 and 13 deals with the judgment and inparagraph 10 he avers that the learned District Judge’s judgmenthas the effect of misleading all the.parties. In paragraph 14 heavers that as issue No. 5 raised by him has been answered in theaffirmative, the schedule of shares tendered by the plaintiff-respon-dent is not in keeping with the judgment and should be rejected andaccept the schedule of shares prepared according to devolutiongiven by him in his statement of claim and to enter decree accord- 130ingly. In the circumstances he prays that his petition and affidavit beaccepted that having examined the said petition and affidavit theschedule of shares tendered by him be accepted and the corpuspartitioned according to the said schedule of shares tendered bythe 5th defendant-appellant.
On an examination of this petition I am inclined to agree withthe learned District Judge when he observed in his order that “the5th defendant whose notice of appeal was rejected is trying to dothe same thing indirectly by the petition namely attempting to showthat the learned trial Judge had made errors in his judgment and nothereby was attempting to get his claims to shares accepted” thatthis was not a petition under section 48(4) of the Partition Law, No.
21 of 1977 for the 5th defendant-appellant was present in Courtand was represented by Attorney-at-Law and participated at thetrial. It was also not a petition under section 189 of the CivilProcedure Code to bring the decree in conformity with the judg-ment by the correction of any arithmetical or clerical errors or anyaccidental slip or omission, for the petition expressly states thatthere is lacuna or errors in the judgment.
The petition appears to be an application to correct the alleged 150errors in the judgment mentioned by the 5th defendant-appellant.
At this stage it would be relevant to consider the observationof Dheeraratne, J. in Ranjit v Kusumawathie and others (?).
“The order appealed from is an order made against theappellant at the first hurdle. Can one say that the ordermade on the application of the 4th defendant is one suchthat whichever way the order was given, it would have
qa Chandrasena v Nandawathie and another (Somawansa, J.)143
finally determined the litigation? Far from that, even if theorder was given in favour of the appellant, he has to facethe second hurdle, namely the trial to vindicate his claim.
In the words of Lord Esher in Salaman’s case (supra) at735:”
“The question must depend on what would be the resultof the decision of the Divisional Court, assuming it to begiven in favour of either of the parties. If their decision,whichever way it is given, will if it stands,.finally disposeof the matter in dispute, I think for the purposes of theserules it is final. On the other hand, if their decision, if givenin one way, will finally dispose of the matter in dispute, butif given in the other, will allow the action to go on, then Ithink it is not final, but interlocutory.”
In the instant situation too there are two hurdles for the 5thdefendant-appellant to clear. First to succeed in persuading thelearned District Judge to examine his schedule of shares belatedlytendered. Secondly to justify that his schedule of shares are inaccordance with the evidence led in the instant case as opposed tothe schedule of shares filed by the plaintiff-respondent for which afurther inquiry has to be held and the 5th defendant-appellant hasfailed at the first hurdle.
Counsel for the 5th defendant-appellant also cited the case ofWijesundera v Herath Appuhamy and othersin which the appealraised the question of correctness of an order made by the learnedDistrict Judge refusing an application to amend in terms of Section189 of the Civil Procedure Code the interlocutory decree entered inthe partition action. The application was made on the ground thatthe decree was not in conformity with the judgment and that it hasbeen entered by an error arising from an accidental slip or omissionon the part of the learned District Judge who heard the trial.However as stated the petition of the 5th defendant-appellant wasnot to bring the decree in conformity with the judgment but to cor-rect the alleged errors in the judgment.
It is also contended by the counsel for the 5th defendant-appellant that the preliminary objection taken on the question ofright of direct appeal was raised by the counsel for the plaintiff-
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respondent on an earlier occasion and this Court, after a hearingrejected the said objection and has directed the Registrar to pre-pare the briefs and fix the matter for hearing. Therefore the plain-tiff-respondent is estopped from raising the same preliminary objec-tion afresh. In support of this contention the 5th defendant-appel-lant has tendered with his written submissions a photo copy of an 200application to this Court to support an application in terms of sec-tion 755 (5) of the Civil Procedure Code. However I am unable totrace such an application in the docket and the minutes in the dock-et do not indicate that such an application was considered or anyobjection raised by the plaintiff-respondent challenging the right of-appeal or any order made on such objection. However by minutedated 02.02.1999 this appeal has been accelarated and thelearned District Judge has been directed to stay proceedings. Onan examination of the docket and the minutes therein, I am unableto accept the position that the same preliminary objection was 210taken by the plaintiff-respondent in an earlier occasion.
It is also contended by the counsel for the 5th defendant-appel-lant that the learned District Judge in his judgment dated 8.11.1996did not come to a conclusion in relation to the schedule of shares butstated that if the schedule of shares forwarded by the plaintiff-respon-dent was in conformity with the judgment it would be treated as partand parcel of the judgment thereafter. It is contended that final appeallies against this part of the judgment which had been postponed to17.02.1998 on which date the petition of the 5th defendant-appellantwas refused. I am unable to agree with this line of argument for the 220reason presenting no difficulty or complication, that the order pro-nounced on 17.02.1998 was incidental to the judgment pronouncedon 20.12.1996 and the rights of the parties to the action was finallyand decisively disposed of by the judgment dated 20.12.1996 andthe schedule of shares was accepted and even the interlocutorydecree was signed on 29.04.97 and in any event the petition of the5th defendant-appellant was tendered only on 07.08.97 more than 3months after the interlocutory decree was signed.
In the circumstances I have no hesitation in holding with theplaintiff-respondent that the order dated 17.02.1998 is not a judg- 230ment or an order having the effect of a final order deciding the rightsof the parties.
Chandrasena v Nandawathie and another (Somawansa, J.)
It was also contended by the counsel for the 5th defendant-appellant that notwithstanding the rejection of the notice of appeala petition of appeal has been filed on 19.02.1997. Further it is con-tended that the rejection of the appeal is erroneous in view of thedecision in Charletuma v Batud4) and also having cited SC Appeal71/99 it was averred that this Court has inherent power to correctany order made per incuriam by the original Court. However I donot think that I could consider at this juncture to correct any order 240made per incuriam without the 5th defendant-appellant takingproper steps to have the said order vacated. In the .circumstancesit appears to me that the 5th defendant-appellant has waived anyrights if any to have the said order vacated.
It is also contended by the 5th defendant-appellant that sinceissue no. 05 raised by him has been answered in the affirmative theschedule of shares given according to devolution shown by him inhis statement of claim should have been accepted by the learnedDistrict Judge in preference to the schedule of shares given by theplaintiff-respondent. However it should be noted here that issues 04 250and 06 raised by the 5th'defendant-appellant has been answeredin the negative. Hence it is apparent that the pedigree as shown inthe statement of claim of the 5th defendant-appellant has not beenaccepted by the learned District Judge in his judgment. For theabove reason I hold with the plaintiff-respondent and reject theappeal of the 5th defendant-appellant with costs.
DISSANAYAKE, J. – I agreeAppeal rejected.