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Present: Schneider and Garvin JJ.
DASSANAIKE v. DASSANAIKE.
[Application for Conditional Leave to Appeal to the PrivyCouncil—D. C. Ratnapura 4,191.]
Privy Council—Conditional leave to appeal—Order setting aside a decreeentered in pursuance of an adjustment—Appeals (Privy Council)-Ordinance, No. 31 of 1909, rule 1 (a).
The defendant in the action pleaded that the matter in suit hadbeen adjusted by an agreement entered into^ between the partiesin the course of another action and moved that decree be enteredaccording to the adjustment.
The District Court upheld the plea, but in appeal that order wasset aside and the case sent back for proceedings in due course.
Held, that the order of the Supreme Court was not a final onewithin the meaning of rule 1 (a) of the rules in the schedule I., ofthe Privy Council Ordinance.
PPLICATION for conditional leave, to appeal to the PrivyCouncil.
Ameresekere (with Namratnam), in support.
N. E. Weerasooria, for respondent.
October 29, 1928. Schneider J.—
This application for conditional leave to appeal to the PrivyCouncil is opposed on the ground that the judgment sought to beappealed against is not “ final ” within the meaning of rule 1 (a)>
1 4 C. W. if. 126.
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of the rules in schedule I. of the Appeals (Privy Council)Ordinance, 1909.1 The application is in the form to be found inschedule ft. of “ The Appellate Procedure (Privy Council) Order,1921,” 2 and contains only a bare statement that the judgmentis final besides the allegations as to the date the judgment waspronounced and the value of the matter in dispute. But Counselsupplied us with the following facts.
The defendant amended his answer long after the institution ofthe action by pleading that the action had been adjusted by anagreement entered into by and between the same parties duringthe course of another action, and subsequently moved under section408 of the Civil Procedure Code to notify the adjustment pleadedand that a decree be passed according to the adjustment. Theplaintiff opposed this motion and denied the adjustment relied on.The defendant succeeded in the lower Court, but on appeal theorder of that Court was set aside by this Court and the action wassent back to the lower Court for trial and proceedings in due course.It was submitted on behalf of the applicant that the judgment wasfinal inasmuch as it finally disposed of the question whether theadjustment relied on can be offered as a defence to the plaintiff’sclaim. I am unable to agree with this submission. The decisionof this Court has not disposed of the action finally, but has orderedit to be tried in due course. The question, “ What is a final judg-ment ? ” was considered by a Bench of Three Judges of this CourtIn re Estate of Kirtisinghe Kuda Banda? Perera J., with whose judg-ment the Chief Justice agreed, cited the case of Salmon v. Warner andadopted the interpretation of a final judgment given in that case.It was held in that case that “ an order is final only when it is madeupon an application or other proceeding which must, whether suchapplication fail or succeed, determine the action.” The decision ofthis Court in that case is binding upon me, but apart from thatI agree with the definition of a final order given in that case.Although the words “final judgment” considered in that casewere words used in section 42 of the Courts Ordinance4 which wasrepealed by the Appeals (Privy Council) Ordinance, 1909,1 in myopinion that makes no difference as in both enactments the wordsappear to bear the same meaning. I hold that the judgment ofthis Court is not final.
I therefore dismiss the application.
Garvin J.—I agree.
1 Ordinance No. 31 of 1909.
’ “ Ceylon Government Gazette ” No. 6,950 of June 21, 1921.
3 2 Balasingham 87.
* No. 1 of 1889.
DASSANAIKE v. DASSANAIKE