060-NLR-NLR-V-05-KARONCHIHAMI-v.-ANGOHAMI.pdf
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KARONC'HIHA.Ul v. ANGOHAMl.
D. C., Kandy, 6,-563.
iCivil Procedure Code, ss. 779 and 780—" Final judgment"—“ Withincalendar months.
1901.
June 12, andJuly 4 and 18.
two
Moncbeiff, J.—“ A final judgment has been variously interpreted. Bysome it is said to be a judgment by which the whole of the contest in thesuit has been destroyed; by others, one which determines the rights of theparties; and again, other judges have defined it to be a judgment in whichno further steps are necessary to perfect the judgment*. There seems tobe some kind of obscurity about the dicta on the subject. In the caseof the Standard Discount Co. v. Lagrange, 3 C. P. D. 67, the Court ofAppeal (Bramwel), Brett, and Cotton, Ii. J. J.) held that, where aMaster of the Court (whose decision was affirmed on appeal) empoweredthe plaintiff to sign judgment under Order 14, it was not a final judgment,because, in order to issue execution, a further order would be necessary.There was a case also in the Privy Council (Huhtbhhoy ®. Turner, L. R.18 Ind. App. 6) in which the action was for the taking of several accounts.The Court held that some of those accounts should be taken, and othersnot, and the Privy Council was of opinion that that judgment was finalbecause the taking of the accounts was a mere arithmetical calculation.
" The principle which I should deduce from the case is, that wherethe act which remains to be done is purely ministerial or arithmetical.. the suit is at an end. ’’
The judgment of the Court below having been affirmed in appeal on10th May, 1900, appellant applied on 10th July to have the judgmentbrought by way of review before the Collective Court,—
Held, that such application was made within two calendar monthsfrom the date of the judgment.
fTlHIS was an application to the Supreme Court for a certificateX under section 781 of the Civil Procedure Code prior to anappeal to the Privy Council. The judgment of the Court below,in respect of which the appeal was taken, was affirmed by theSupreme Court on the 10th May, 1900. The defendants filedtheir petition of appeal on the 10th July, 1900.
Van Langenberg, for appellants, moved for the certificate on11th June, 1901.
Bawa appeared for the plaintiff, and desired to be heard.
The matter was argued on the 12th June before Lawrie, A.C.J..and re-argued before Lawrie, A.C.J., and Moncreiff, J., onthe 4th July.
Bawa.—The judgment of the Supreme Court was delivered onthe 10th May, 1900, and appeal was filed on the 10th July, as willappear from the note of the Registrar, though the petition appearsdated 9th July. The appeal must be filed under section 780 ofthe Code within two calendar months. The handing of thepetition to the Registrar is not an application in the sense of the
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1901.Code. It must bemade to the Court itself withiu two calendar
June 12, on* months. The ruleof excluding the day on which the judgment
l__’ was delivered does not apply to appeals u'nder section 780. Stroud’s.
Judicial Dictionary defines the meaning of “ calendar.” Thereckoning should be from the given day in the first month to thecorresponding day in the next month, less one day. The appli-cation was therefore one day too late (Migotti v. Colville, 48 L. J.C. P. ,695). The decision in South Staffordshire Railway Co. v.Sickness & AccidentInsurance Co., L. R. 1 Q. B. D. 408 (1891) is on;
the particular factsof the case, and not on the general law. Here
the judgment in respect of which the appeal is taken is not final.The defendant is ordered to account to the plaintiff for the produceof certain lands, and directions are given as to certain matters in’the work of futurity. The decree entered is not for a specific sumof money, but for accounts which have not yet been stated. Until'the accounting is stated, and the result found, no final order can begiven, and then only could an appeal be taken. Jackson v. ColomboCommercial Co., 8 C.L. R. 127; 1S. C.R. 113; Corbet v.Ceylon
Company, Limited, S.C. Min., 5thApril.1887.
Van Langenberg, for appellant —The decree entered is final.The object of the action was to establish the status of the first plain-tiff, and the decree in the case settles that point. The first plaintiff'is declared the heiress of the intestate, and on the footing of thatfact called upon, the defendant to file certain accounts in the testa-mentary case wherein the estate of the intestate was administered.The decision in the present case is therefore final and appealable as'-to the meaning of the expression ” within two calendar months.”
The application was not made on the 10th July. It was handed,in on the 9th evening,and the onlyreasonwhy it wasnot argued on
the same day was that it was notconvenient to theCourt.Even
assuming that the application was made on the 10th, the first daymust be excluded. 1 N. L. R. 178; 4 N. L. R. 884. The wordswithin and from are used in the former judgment. Again, SouthStaffordshire Railway Co. v. Sickness rf- Accident Insurance Co.,L. R. I, Q. B. (1891) 402, also excludes the first day and includesthe last day. Arch. Practice, p. 1435; Williams v. Surges*. 12
& E. 635; ex parte Fallon, 5 T. R. 283.
Cur. adv. vult;.
Lawbie, A-C’.J.—I am content to give the certificate asked for:Moncreii-'k, J.—1 am of the same opinion.
In this action the plaintiff asked for a great many things, andmany issues were framed by the District Judge. A good deal
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'turned upon the validity of the alleged marriage of the first1801.
defendant to the deceased Sinno Appu, the legitimacy of her4 and 16.
children by him, and the validity of certain donations made by——
him. The District Judge dealt first with those matters, and judg- Moncotot,ment on appeal was given on the 26th January, 1897.
Thereafter the District Judge dealt with other matters arisingin the case, and his judgment upon them was affirmed by theSupreme Court on the 10th May, 1900. The defendants enteredtheir petition of appeal on the 10th July, and in .my opinion theywere in time.
The question is whether the action came to an end in 1897, withthe result that what has been going on since then is the mereformal execution of what was then decided, or whether thejudgment of the 10th May, 1900, is not a final judgment, having theeffect of a final sentence.
A final judgment has been variously interpreted. By some, itis said to be a judgment by which the whole of the contest in the•suit has been destroyed; by others, one which determines the ■rights of the parties; and again, other judges have defined it to bea judgment in which no further steps are necessary to perfect thejudgment. There seems to be some kind of obscurity about thedicta on the subject. In the case of the Standard Discount Co. v.
Lagrange, 3 C. P. D. 67, the Court of Appeal (Bramwell, Brett, andCotton, L. J. J.) held that, where a Master of the Court (whosedecision was affirmed on appeal) empowered the plaintiff to signjudgment under order 14, it was not a final judgment, because, inorder to issue execution, a further order would be necessary.
There was a case also, in the Privy Council (Hubibbhoy v. Turner,
L. R. 18 Ind. App. 6) in which the action was for the taking ofseveral accounts. The Court held that some of those accountsshould be taken, and others not, and the Privy Council was ofopinion that that judgment was final, because the taking of theaccounts was a mere arithmetical calculation.
The principle which I should deduce from the case is, thatwhere the act which remains to be done is purely ministerial orarithmetical, the suit is at an end. In this case the judgment ofJanuary, 1897, disposed of issues 8, 9, and 10, and the judgment ofMay, 1900, disposed of five other issues, one of them involvinga declaration that the plaintiff was sole heir, and the othersinvolving contentious matters which ultimately necessitated anappeal to this Court. I cannot say that these were purely minis-terial proceedings, or mere matters of accounting, and I think thesuit was alive until they were determined.
In my opinion the certificate prayed for should be issued.