080-NLR-NLR-V-43-PALANIAPPA-CHETTY-v.-MERCANTILE-BANK-OF-INDIA-et-al.pdf
352 HOWARD C. J.—Palaniappa Chetty v. Mercantile Bank of India.
1942Present : Howard C.J. and Hearne J.
PALANIAPPA CHETTY v. MERCANTILE BANK OF INDIA et. al.
113—D. C. (Inty.) Colombo, 49,541.
Privy Council—Conditional leave to appeal—Date of application and noticeof application—Computation of period—Mortgage action—Applicationfor execution of decree—Appeal from order—Finality of order—TheAppeals (.Privy Council) Ordinance, Cap. 85, Rules l (a) and 2.
In an action on a mortgage bond the mortgage decree was affirmedin appeal and, by consent, the parties entered into an agreement withregard to the execution of the mortgage decree. Thereafter, an applica-tion for execution of the decree was made in the District Court andallowed. On appeal the order allowing execution was affirmed.
Held, that the order allowing execution was not a final order withinthe meaning of Rule' (1) (a) of the Rules in the Schedule to the Appeals
(Privy Council) Ordinance.
/—
■Held, further, that in computing the period of thirty days withinwhich an application for leave to appeal should be made under Rule (2)and the period within which notice of such application should be given,the days included in vacation of the Supreme Court should not bereckoned.”
Pathmanathan v. Imperial Bank of India (39 N. L. R.' 103), followed.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
H. V. Perera, K.C. (with him Walter .Jayewardena), for the petitioner.
N. E. Weerasooria, K.C. (with him E. B. Wickremanayake and H. A.Koattegoda), for the first and sixth to sixteenth defendants, respondents.
Cur. adv. vult.
January 13, 1942. Howard C.J.—1
This is an application for conditional leave to appeal to the PrivyCouncil against a judgment of this Court, dated December 19, 2941,dismissing an appeal of the applicants from an order of the District Courtof Colombo, dated September 8, 1941. The application is made under
HOWARD C.J.—Palaniappa Chetty v. Mercantile Bank of India. 353
rule 2 in the Schedule to The Appeals (Privy Council) Ordinance (Cap.•85). This rule provides as follows : —
“ 2. Application to the Court for leave to appeal shall be made bypetition within thirty days from the date of the judgment to beappealed from, and the applicant shall, within fourteen days fromthe date of such judgment, give the opposite party' notice of suchintended application.”
The respondents contend that the application to the Court for leave toappeal has not been made within thirty days from the date of thejudgment to be appealed from nor has the applicant within fourteen daysfrom the date of such judgment given the opposite party notice of suchintended application. The judgment appealed from was delivered onDecember 19, 1941, and the application is dated January 30, 1942.Counsel for the respondents has made reference to section 8 (3) of theInterpretation Ordinance (Cap. 2) and contended that, inasmuch as thetime prescribed by law for making the application exceeded six days,intervening Sundays and holidays are not excluded from the computationof such time. In this connection we were referred to Murugesu v.Arumugam and another. In the present case, however, a questionarises with regard to section 8 of the Supreme Court (Vacation) Ordinance(Cap. 10). This section is worded as follows: —
“ 8. Where, by an Ordinance, or rule, regulating civil procedure-or by any special order of the Court, any limited time not exceedingone month is appointed or allowed for the doing of any act or thetaking of any proceeding in the Supreme Court, no days included in avacation shall be reckoned in the computation of such time unless theCourt otherwise directs.”
It was held in Pathmanathan v. The Imperial Bank of India2 that incomputing the period of thirty days within which an application forleave to appeal should be made under Rule 2 of Schedule I. of the Appeals(Privy Council) Ordinance, the days included in a vacation of the SupremeCourt should not be reckoned. For the same reasons that are givenin the judgment of Poyse£ J., in Pathmanathan v. The Imperial Bank ofIndia, I am of opinion that section 8 of the Supreme Court (Vacation)■Ordinance can be invoked in this case. In these circumstances theapplication was in time for, during the period December 19, 1941, toJanuary 30, 1942, there is the Christmas vacation of twenty-one days.In calculating whether the respondents have been given fourteen days’notice of the intended application the days which fall within the periodof the Christmas vacation must be excluded. Having regard to this,fourteen days’ notice has been given so far as notice of the intendedapplication on each of the respondents is concerned. Compliance has,therefore, been made with the rule.
The respondents, however, take the further point that the orderappealed from is not a “ final judgment of the Court ” within the meaningof that expression in rule 1 (a) of the Schedule to Cap. 85. The questionas to what constitutes a “final order” was considered by the Privy Council1 16 C. L. if. 2281 39 A'. L. if. 103
354 HOWARD C.J.—Palaniappa Chetty v. Mercantile Bank oj India.
in Abdul Rahaman v. D. K. Cassim1 when the test of finality was laid down.The test to be applied was whether the order “ finally disposes of the rightsof the parties ”. This case followed the judgment of Viscount Cave inRamchand Manjimal v. Goverdhandas Vishindas In that judgmentViscount Cave referred to and followed the English cases of Salaman y.Warner s and Bozsch v. Altricharri Urban District Council *. In Salaman v.Warner Fry L.J. stated 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 other 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.”
Can it be said that the order from which it is intended to appeal to" thePrivy Council finally disposed of the rights of the parties ? In order toelucidate this question it is necessary to examine the history of the case.On December 6, 1935, a mortgage decree was entered in the District Courtin favour of the respondents. This decree was affirmed by the SupremeCourt on May 18, 1937. On December 16, 1937, by consent, the partiesentered into an agreement with regard to the execution of the mortgagedecree of May 18, 1937. On May 10, 1938, judgment was deliveredby the Supreme Court in pursuance of this agreement and decree enteredin terms of such judgment on the same day. On December 19, 1939,^application was made for execution against the appellants of the decreeof December 16, 1935, and varied of consent of parties as per decree ofMay 10, 1938. On September 8, 1941, this application was allowed withcosts. The decision of the District Court allowing the ~ application wasaffirmecf_by this Court on December 19, 1941. In my opinion the rightsof the parties to the action were finally determined by the decree of this'Court dated May 10, 1938. We have been referred by Counsel for theappellants to the case of Subramaniam Chetty v. Soysa In that casethe Supreme Court set aside a sale by an execution-creditor through theFiscal of the property of the judgment-debtor on the ground of amaterial irregularity in its conduct. The purchaser applied for condi-tional leave to appeal to the Privy Council. It was held that the ordersetting aside the sale was a final judgment within the meaning of rule 1 (a)in Schedule I. of Ordinance No. 31 of 1909-. This judgment was basedon the ground that the order setting aside the sale finally disposed of thecase between the parties to the' proceedings, that is to say, the purchaserand the execution-creditor. The case has no material bearing on thequestion involved in the present case wherein the rights of the parties- to the action were determined by the decree of May 10, 1938. If theargument put forward by Counsel for the applicant were to. succeed,it would enable every judgment-debtor on an application for executionto question the validity of the decree on which the application was basedin spite of the fact that the time for appealing against such decree waspast.
1 A. 1. R. (1933) P. C. 581 A. 1. R. (1920) P. C. S6
6 25 X. L. R. 344
3 (1891) 1 Q. B. 734' (1903) 1 K. B. 547
355
HOWARD C.J.—The King v. Dingiri Banda.
For the reasons I have given, I am of opinion that the judgmentappealed from was not a final one. The application is, therefore,dismissed with costs.
Hearne J.—I agree.
Application dismissed.