024-SLLR-SLLR-2006-V-1-CHITRA-MANOHARI-PERERA-vs.-SHANTHI-PERERA.pdf
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CHITRA MANOHARI PERERAVSSHANTHI PERERASUPREME COURTS.N. SILVA, CJDISSANAYAKE, J. ANDFERNANDO, J.
SC APPEAL No. 83/2003
A. No. 792/2000 (F)
C. COLOMBO CASE No. 4307/T9TH JUNE AND 9TH JULY, 2004
Civil Procedure Code – Testamentary procedure-Citation under section 712and order under section 716 of the Code— Whether order under section 716 isa final order giving a right of appeal under section 754(1) and 754(3) of theCode or an incidental order giving only a right of appeal under section 754(2)by way of an interlocutory appeal, with leave to appeal.
This appeal relates to the estate of Emmanuel Perera who died on13.07.1965 leaving a will. The appellant who is described in the judgement asthe petitioner (Chitra Manohari Perera) was finally appointed in the room of thedeceased executor. This appeal is in respect of an order made by the DistrictJudge under section 716 of the Civil Procedure Code upon a citation madeunder section 712 of the Code against the respondent (to give up property ofthe estate which had been withheld by the respondent).
An appeal was lodged against the District Judge’s order under sections754(1) and 754(3) of the Code. The Court of Appeal set it down for argument.
Held:.
The order made by the District Judge was an incidental order in respect ofwhich an (interlocutory) appeal had to be made with leave of court under section754(2) as such order did not finally dispose of the rights of parties, while thetestamentary case was pending. It was not a final order from which an appealunder sections 754(1) and 754(3) could be made.
Cases referred to:
Siriwardena vs Air Ceylon Limited (1984) 1 Sri. L. R. p. 286
Ranjith vs. Kusumawathi and Others (1998) Sri L. R. 232
Salaman vs. Warner and Others (1891) 1 Q B 734APPEAL from the judgement of the Court of Appeal.
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Chltra Manohari Perera vs
Shanthi Perera (Dissanayake, J.)
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Romesh de Silva, P. C. with H. Amarasekera, H de Livera and Sugath Calderafor appellant.
M. B. Ratnayake for respondent.
Cur. adv. vult
June 16,2005
NIMAL DISSANAYAKE, J.J. K. Emmanuel Perera died on 13th July, 1965, leaving a last will andtestament naming his brother J. K. Eugene Perera as Executor. The said
J.K. Eugene Perera instituted testamentary proceedings bearing No. 4307/Tin the District Court of Negom bo wherein the said last will was proved andprobate obtained, in the name of the original petitioner J. K. Eugene Perera.
. On an appeal made to the Supreme Court against the said grant ofProbate, a re-trial was ordered.
Thereafter the said J. K. Eugene Perera had died and his widow
K.Emalin Perera had been substituted in his place. Subsequently thesaid Emalin Perera had been granted Probate.
The said Emalin Perera by her application dated 1st February, 1999,applied for citation under Section 712 of the Civil Procedure Code on the6th Respondent-Respondent-Appellant-Respondent.
Emalin Perera died and her daughter Chitra Perera the 4 (b) Respondent-petitioner-respondent applied to be substituted in the place of the deceasedEmalin.
The learned District Judge by his two orders both dated 8th September,2000, permitted the citation and permitted Chitra Perera (who shallhereinafter be referred to as the petitioner) to be substituted in the room ofthe deceased substituted Petitioner Emalin Perera.
The Respondent filed a notice of appeal followed by a petition of appealpurporting to act under Sections 754(1) and 754(3) of the Civil ProcedureCode.
When the said appeal had come up for hearing before the Court ofAppeal, the following two preliminary objections had been taken on behalfof the petitioner, namely-
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that the petition of appeal was out of time and warranted rejection,
that there was no right of appeal from the order of the learned DistrictJudge in terms of Section 754 of the Civil Procedure Code.
Both parties have consented before the Court of Appeal to conclude thematter by way of written submissions.
However, it appears that the petitioner had abandoned her 1 st preliminaryobjection before the Court of Appeal and had referred only to the 2ndpreliminary objection in her written submissions.
The learned Judge of the Court of Appeal by his order dated 18.06.2003dismissed the preliminary objections and set down the appeal for argument.
Special leave has been granted by this Court on the following twoquestions of law
whether the order dated 08.09.2000, is a final judgement or ordernot having the effect of a final order ?
whether in the circumstances of the case should the 6thRespondent have filed a leave to appeal application ?
The contention of learned Counsel for the petitioner in brief was thatthere can only be one judgment in a summary case and as against theother orders the correct procedure to be followed, in the event of an appealwas by way of a leave to appeal application, under Section 754(2) of theC. P. C.
Therefore he has contended that the procedure for appeal against theimpugned order of 8th September, 2000 is by way of an application forleave to appeal. Since no application for leave to appeal has been filed, theappeal had to be rejected and therefore dismissed.
On the other hand, learned counsel for the Respondent contended thatthe order dated 8th September 2000, permitting the application for citationhas to be issued under Section 715 of the Civil Procedure Code only afteran Inquiry, and has to be proceeded in like manner and with like effect as
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Chtira Manohari Perera vs
Shanthi Perera (Dissanayake, J.)
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upon a trial, and that after the conclusion of the trial like inquiry, judgementmust be entered.
Therefore, in terms of Section 754(5) the impugned order of 08.09.2000has the effect of a judgment and therefore a right of final appeal lay againstthe said order and he argued that hence the judgment of the Court ofAppeal was correct. It is apparent that the learned District Judge hasacted under Section 712 and had held an inquiry and had made an orderof citation under Section 716 of the Civil Procedure Code, to bring into thecredit of the case all rents admittedly received by the Respondent in respectof a number of premises bearing numbers 179 and portions of No. 181which are morefully depicted in plan bearing No. 1662/1.
The question before this Court presently is whether the order dated08.09.2000 has the effect of a final judgment in terms of Section 754(1)and (5) and therefore whether the Respondent had a right of final appeal interms of Section 754(1) of the Civil Procedure Code.
In Siriwardenavs. Air Ceylon, Limited w Sharvananda J (as he thenwas) after an analysis of a number of English decisions, at page 297, laiddown some tests to be applied to determine the question whether an orderhas the effect of a final judgment and has stated:
“It would appear from the above authorities, for an order to havethe effect of a final judgment and to qualify to be a judgment underSection 754(5) of the C.P.C.-
It must be an order finally disposing of the rights of the parties,
The order cannot be treated to be a final order if the suit or action isstill left a live suit or action for the purpose of determining the rightsand liabilities of the parties in the ordinary way.
The finality of the order must be determined in relation to the suit.
The mere fact that a cardinal point in the suit has been decided oreven a vital and important issue determined in the case, is not enoughto make an order, a final one.”
In the case of Ranjith vs. Kusumawathi and others<2) Dheeraratne, J.who too had embarked on an analysis of a number of English and SriLankan judgments has stated at page 236:
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There have been two virtually alternating tests adopted by differentjudges from time to time in the U. K. to determine what final ordersand interlocutory orders were. In White vs. Brunton (1984) 2 All E.R. 606), Sir Donaldson MR, labeled the two tests as the orderapproach and the application approach. The order approach wasadopted in Shubrook vs. Tufnel (1882) 9 QBD 621 ; 1881-8) AllE. R. 180) where Jessel, MR. and Lindel, L. J. held that an order isfinal if it finally determines the matter in litigation. Thus the issue offinal and interlocutory, depended on the nature of the order made."
At page 239 Dheeraratne, J. had quoted the words of Lord Esher inSalamon Vs. Warner and Others(3> and stated that –
“The question must depend on what would be the result of thedecision of the Divisional Court, assuming it to be given in favour ofeither of the parties. If their decision, whichever way it is given, will ifit stands finally dispose of the matter in dispute, I think for the purposeof these rules it is final. On the other hand, if their decision, if given inone way, will finally dispose of the matter in dispute, but if given inthe other, will allow the action to go on, then I think it is not final, butinterlocutory.”
Dheeraratne, J. has applied the order approach in coming to his decisionin the said case of Ranjith l/s. Kusumawathi and Other (Supra).
In the case at hand ,the impugned order dated 08.09.2000 is an order ofcitation, made under Sections 712 and 716 of the C. P. C.
This is an incidental order, as the testamentary proceedings was themain matter before Court, which has commenced under Section 516 ofthe C. P. C. and will be concluded only after filing of final accounts in termsof Section 551 of the C. P. C and with the closing of the estate.
The testamentary matter is still pending before the District Court.Therefore, an order of the learned District Judge under Sections 712 and716 of the C. P. C. will not finally dispose of the matter, whichever way it isgiven.
Thus the impugned order dated 08.09.2000 of the learned District Judgeis an interlocutory order and not a final order.
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Shanthi Perera (Dissanayake, J.)
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It is my view that therefore, the Respondent who was dissatisfied withthe said order should have first filed an application for leave to appeal tothe Court of Appeal in terms of Section 754(2) of the C. P. C. and not apetition of Appeal under Section 754(1) and 754(4) of the Civil ProcedureCode. The learned Judge of the Court of Appeal has erred in dismissingthe preliminary objection taken by the Petitioner.
I allow the appeal of the petitioner and set aside the judgment of theCourt of Appeal and reject the petition of appeal tendered against theorder of the District Court by the Respondent.
S. N. SILVA, C. J.—I agree.
RAJA FERNANDO J.—I agree.
Appeal allowed.