066-NLR-NLR-V-49-FERNANDO-et-al.-Petitioners-and-CHITTAMBARAM-CHETTIAR-Respondent.pdf
■HOWARD CJ.—Fernando v. Chidambaram Chettiar.
217
1948Present : Howard C.J. and Dias J.
FERNANDO el al., Petitioners, and CHITTAMBARAMCHETTIAR, Respondent.
S. C. 600—Ajpflication fob conditional leave to appealto the Pbivy Council in D. C. Colombo, 6,226.
Privy Council—Conditional leave to appeal—Setting aside order of abatemen ofaction—Is it a final order ?—Test of finality—Chapter 85—Rule 1 (a)of Schedule to Cap. 85.
Plaintiff, the administrator of a deceased Chettiar, brought this actionagainst the defendant for the recovery of a sum of money due to the estateof the Chettiar in November, 1936. In July, 1940, the District Judge enteredcm order of abatement under section 402 of the Civil Procedure Code. Theattorney of the heirs of the Chettiar to whom letters of administration hadsubsequently been issued moved to have the order for abatement set asidebut his application was dismissed. The Supreme Court vacated the order ofthe District Judge, set aside the order of abatement and sent the case backfor trial.
Held, that the order of the Supreme Court was not a final order and thatno appeal lay to the Privy Council.
.A-PPLICATION for conditional leave to appeal to the Privy Council.
E. F. N. Gratiaen, K.C., with Kingsley Herat, for the petitioners.
H. V. Perera, K.C., with P. Havaralnarajah and T. K. Curtis, for therespondent.
February 6, 1948. Howard C.J.—
This is an application by the defendants-appellants for conditionalleave to appeal to His Majesty the King in Council under Rule 1 (a) ofthe Schedule to the Appeals (Privy Council) Ordinance (Cap. 85) againsta judgment of this Court dated December 1, 1947, vacating the orderof the District Court and remitting the case to the Court below for trial.The application is opposed by the plaintiff-respondent on the groundthat the judgment appealed from is not a “final” judgment of theCourt and hence under the said Rule no appeal lies as of right. Therespondent, therefore, asks for the dismissal of the application. Thefacts leading up to this application are as follows. One Parathasarthy,the administrator of the estate of a Chettiar, instituted in the DistrictCourt of Colombo on November 30, 1936, the present action against thedefendants for the recovery of a sum of Rs. 272,062.50 due to the estateof the deceased. The action was fixed for trial on December 9, 1937,but was postponed for March 9,1938, owing to the illness of the plaintiff.On July 13, 1940, the District Judge entered an order of abatementex mero motu under section 402 of the Civil Procedure Code on the groundthat a period exceeding twelve months had elapsed since the last ordermade in the case without the plaintiff taking steps to prosecute the
20 – N.L.R. Vol – xlix
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HOWARD C.J.—Fernando v. Uhitlambaram Cheltiar.
action. Subsequently the District Judge disallowed the petition of therespondent who is the attorney of the heirs of the deceased Chettiarand to whom letters of administration had been issued, to have theorder of abatement set aside. On December 1, 1947, this Court vacatedthe order made by the District Judge on July 13, 1940, and remitted thecase to the Court below for trial.
The only question for consideration is, therefore, whether the orderof this Court on December 1,1947, allowing the plaintiff’s appeal from therefusal of the District Court to set aside the order of abatement anddirecting the case to be restored to the list was a “ final ” order. Mr.H. V. Perera for the plaintiff respondent has referred to the judgmentof this Court in Palaniappa Chetty v. Mercantile Bank of India1. Inthat case, an action on a mortgage bond, the morgage decree was affirmedin appeal and by consent the parties entered into an agreement withregard to the execution of the mortgage decree. Thereafter an appli-cation for execution of the decree was made in the District Court andallowed. On appeal the order allowing execution was affirmed. Itwas held that this was not a “ final ” order inasmuch as the rights of theparties to the action were finally determined by the decree of this Courtdated May 10, 1938, in pursuance of the agreement. In my judgmentin this case I referred to the judgment of Pry L.J. in Salomon- v. Warner 2in which a final order was defined as follows :—
“ I think the true definition is this. I conceive that an order is‘ final ’ only where it is made upon an application or ther proceedingwhich must, whether such application or other proceeding fail -orsucceed, determine the action. Conversely, I think that an order is‘ interlocutory ’ where it cannot be affirmed that in either event theaction will be determined.”
In connection, however, with this definition Mr. Gratiaen on behalf ofthe defendants-appellants has invited our attention to the later case ofSettlement Officer v. Van.der Poorten 3 in which I pointed out that whenciting this definition in Palaniappa Chetty v. Mercantile Bank of India, Iwas misled by a passage form the judgment of Viscount Cave in Ram-chand Manjimal and others v. Goverdhandas Vishandas Ratnachand, andothers 4. That passage was to the effect that the decision in Salaman v.Warner was followed by the Court of Appeal in Bozsch v. AUrichamUrban District Council5, whereas in fact Salaman v. Warner was notfollowed, but an earlier case Shubrook v. TufnellB. In this case anarbitrator had stated a case for the opinion of the Divisional Court on aquestion of law. On this case being argued before the Divisional Coartcomposed of Manisty and Williams JJ. the latter ordered judgment to beentered for the plaintiffs. On appeal to the Court of Appeal it was heldthat it was a final order on the ground that if they differed from theCourt below it was the end of the action as judgment had to be enteredfor the defendant. In the event of the appeal being dismissed thejudgment in favour of the plaintiffs stood. So it was a final order. Inthe present case the order of this Court did not put an end to the action
1 (1942) 43 N. L. B. 352.* (1891) 1 Q. B. 734.
» (1942) 43 N. L. B. 436.
A. I. B. (1920) P. C. 86.6 (1903) 1 K. B. 547.
* (1882) 9 Q. B. D. 621.
de SHvn v. de Silva.
219
and settle the rights of the parties. The matter is governed by the caseof Abdul Rahman v. D. H. Casim dk Sons and anotherl. In this case thetest of finality was stated as follows :—-
“ The test of finality is whether the order ‘ finally disposes of therights of the parties ’ where order does not finally dispose of thoserights, but leaves them ' to be determined by the Courts in the ordinaryway, ’ the order is not final. That the order ‘ went to the root of thesuit, namely, the jurisdiction of the Court to entertain it, ’ is notsufficient. The finality must be a finality in relation to the suit. If,after the order, the suit is till a live suit in which the rights of theparties have still to be determined, no appeal lies against it undersection 109 (a). ”
The order of the Court in the present case did not “ finally dispose ofthe rights of the parties ”. It left them “ to be determined by the Courtsin the ordinary way ”. The finality was not a finality in relation to thesuit which was still a live one in which the rights of the parties havestill to be determined. There is moreover the case of Mumtaz- Ud- DaulaMukarram Ali Khan v. Skinner * the headnote of which is as follows :—
“ Where an application is set aside abatement of suit by excusingdelay of two days in making it was rejected and in appeal from theorder, the High Court accepted the appeal and directed the lowerCourt to re-hear the application.
Held, that the order of remand was not a final order. Salaman v.Warner (1891) Q. B. D. 734 (foU.) ”
This case is also concerned with the setting aside of an abatement orderand hence most relevant.
Having regard to the decisions I have cited I have come to the con-clusion that the order appealed from was not a “ final ” one and hencethe application must be dismissed with costs.
Dias J.—I agree.
Application dismissed.