013-SLLR-SLLR-2005-V-2-GAMINI-vs-CHANDRA-AND-OTHERS.pdf
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Sri Lanka Law Reports
(2005) 1 Sri L R.
GAMINIVs
CHANDRA AND OTHERSCOURT OF APPEALAMARATUNGAJ.
CALA APP. 35/02,
D. C. MT. LAVANIA 12/92 (SUMMARY)
SEPTEMBER 02, 2003,
NOVEMBER 28, 2003.
Civil Procedure Code – Section 88 (2) – Cap. 53. Summary Procedure on LiquidClaims – Sections 703, 704 & 707 – Decree Nisi – made absolute – Is it a finalorder ? Order refusing to set aside Decree Absolute – Is it a final order ?
The Defendant failed to appear is Court to obtain leave to appear and defend.Decree Absolute was entered under Section 704 (1). The Defendant made anapplication to set aside the said Order which was dismissed. The Defendantsought leave to appeal from the said order.
HELD-
Once the decree is entered in an action brought under summaryprocedure on liquid claims, the action is finally disposed of. As far asthe trial court is concerned, the action is at an end.
Order refusing to set aside the decree is akin to an order under Section88 (2).
Petitioner cannot come by way of Leave to Appeal. It is a final order.
APPLICATION for Leave to Appeal from an Order of the District Court ofMt. Lavania.
Cases referred to :
Ranjith vs Kusumawathie – 1998, 3 Sri LR 233
Air Lanka vs Siriwardena – 1984, 1 Sri LR 286M. R. de Silva for the Petitioner.
Rohan Sahabandu for the Respondent.
cur. adv. vult.
CAGamini Vs Chandra and Others (Gamini Amaratunga, J)7 3
September 29, 2003GAMINI AMARATUNGA, J
This is an application for leave to appeal. The respondent has raised apreliminary objection that this leave to appeal application is misconceivedin law and that the order complained of was a final order against which theproper remedy is a final appeal.
The plaintiffs-respondents instituted action against the defendant underChapter 53 of the Civil Procedure Code which sets out summary procedureon liquid claims, to recover a sum of Rs. 258,500 due to them on fivecheques. After fiscal reported that summons have been served on thedefendant, the latter failed to appear in Court to obtain leave to appear anddefend. Accordingly, in terms of section 704(1) of Code, the Court entereddecree in favour of the plaintiffs.
Once such a decree is entered it is final subject to the power the Courthas, under section 707 of the Code, in special circumstances to set asidethe decree and to grant leave to appear and defend. The defendant petitionermade an application to court to set aside the decree and after inquiry thelearned Judge dismissed the application. The petitioner having filed a noticeof appeal against that order has also filed this leave to appeal application.
The respondent’s contention is that the said order was a final orderagainst which a final appeal is the remedy and that the petitioner cannotcome by way of leave to appeal.
Once the decree is entered in an action brought under summaryprocedure on liquid claims, the action is finally disposed of. As far as thetrial Court is concerned, the action is at an end. The learned counsel forthe petitioner in his written submissions has contended that if the defendantsapplication under section 707 of the Code to set aside the decree wasallowed, the action would have proceeded and accordingly, the ordercomplained of, i. e. the order refusing to set aside the decree was aninterlocutory decree. He has relied on the case of Ranjith vs.Kusumawathie 1.
Sometimes, it is difficult to identify with certainty, whether an order is afinal order or an interlocutory order. In such situations, the Courts have
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A
adopted two approaches to decide whether a particular order is a finalorder or an interlocutory order. One test is the order approach – that is to■ see whether the order made by Court finally determines the matter inlitigation. If it does, it is a final order and not an interlocutory order. Thisapproach was adopted in Air Lanka vs Siriwardana{2)
The other approach is the application test – that is to consider thenature of the application. If the order made on such application (for whicheverside) finally determines the matter such order is final. But if the order,given in one way, will finally dispose of the matter, but if given in the otherway will allow the proceedings to continue, such order is not final butinterlocutory. This approach was adopted in Ranjith vs Kusumawathie.(Supra). The learned Counsel for the petitioner has based his submissionson the application approach, favoured in Ranjith vs Kusumawathie. (Supra)
However, in this instance, it is clear that the decree entered by Court isthe final step in the application made by way of summary procedure. Thefact that the Court has the power to set it aside, and that the defendant-petitioner has made an unsuccessful application under section 707 toinvoke the power of Court under that section cannot change the final natureof the decree and its confirmation by the Court's refusal to set it aside. Theorder complained of, i. e. the order refusing to set aside the decree is akinto an order contemplated under section 88 (2) of the Civil Procedure Code.Accordingly, I hold that the order complained of was a final order againstwhich the remedy is a final appeal. The petitioner cannot come by way ofleave to appeal. The preliminary objection is upheld and the application isdismissed with costs in a sum of Rs. 5,000.
Application dismissed Preliminary objection upheld.