Ratnayake v Commissioner-General of Excise and others
PUWALAWATHIE PERERAvSOMARATNE AND ANOTHERCOURT OF APPEALUDALAGAMA, J. ANDWIJEYARATNE, J.
C. MT. LAVINIA1192/PAPRIL 4, 2003
Civil Procedure Code, Sections 387, 388, 754(2) and 754(5) – Partition Law,No.21 of 1977, section 48(4) -Acceptance or rejection of schedule of shares -Order or judgment?
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(2004) 1 Sri L.R
A schedule of shares on the face of it at most could form only a part ofan interlocutory decree. Even if one was to consider an interlocutorydecree to be final, such interlocutory decree would not consist only ofa schedule of shares and would by no means be a complete inter-locutory decree having the effect of a final judgment.
The impugned order is admittedly an interlocutory one attracting theprovisions of section 754(2), as the trial judge had only to “decideshares” and he accepted the “shares" filed by the plaintiff-respondentby the impugned order.
APPEAL from the order of the District Court of Mt. Lavinia.
Cases referred to:
Ranjith v Kusumawathie – (1996) – 3 SRI LR 232
Salaman v Warner and others – 1 QB 784
Kanishka Vithana for appellant.
N.R.M. Daluwatte, PC for substituted plaintiff-respondentNihal Guneratne for 1st defendant-respondent
July 17, 2003
UDALAGAMA, J.When this matter was mentioned on 04.04.2003. Mr. Daluwatte, 01
President’s Counsel who appeared for the substituted plaintiff-respon-dent objected to the appeal on the basis that same was misconceived,in that the 3rd defendant-appellant had no right to a final appeal.
Counsel appearing for parties indicated to court thereafter that thepreliminary objection could be disposed of by way of written submis-sions.
This order pertains to the preliminary objection.
The preliminary objection which was originally submitted to court
by way of a motion dated 05.08.2002 stated, inter alia, as follows:-
Puwalawathie Perera v Somaratne and otherfUdalaaama, J.)
This action filed in the District Court of Mount Lavinia bearing caseNo.1192/P, the trial Judge subsequent to evidence allowed the parti-tion of the corpus.
Aggrieved, the 3rd and 5th defendants appealed therefrom.
By the judgment of the Court of Appeal the case was sent back tothe District Court for the purpose of deciding shares. The 3rd defen-dant being aggrieved by the order of the Court of Appeal moved theSupreme Court by-way of leave to appeal which was rejected. Theearlier order' of the Court of Appeal directing the 'District Judge todecide shares had been taken up for inquiry and the District Judgeaccepted the shares filed by the plaintiff by order dated 11.06.2001.
This appeal arises on the application of the 3rd defendant-appel-lant who appears to be once again aggrieved by the order of thelearned District Judge accepting the shares as tendered by the plain-tiff. The said plaintiff-respondent in his preliminary objection maintainsthat the 3rd defendant-appellant ought to have come by way of leaveto appeal as contemplated by the provisions of section 754(2) of theCivil Procedure Code as the order canvassed is not a final judgmentnor an order having the effect of a final judgment as provided by sec-tion 754(5) of the Civil Procedure Code.
That a distinction lies between the terms “final judgment” and an“order” is manifest. It is also manifest that there could be only onejudgment in one case.
However several orders could have the effect of a final order, forexample orders made under Chapter 20 of the Civil Procedure Code. in respect of Summary Procedure which orders have the effect of afinal judgment. Provisions of section 387 and 388 could be cited assuch example.
In Ranjith v Kusumawathie <1> His Lordship Justice Dheeraratnesubsequent to considering 18 authorities has set out a test to deter-mine a final judgment or an order having the effect of a final judgment.His Lordship citing Lord Esher in Salaman v Warner & others.® quot-ed the test to be as follows ‘The question must depend on whatwould be the result of the decision of the Divisional Court assuming itto be given in favour of either of the parties. If their decision, whichev-er way it is given will if it stands, finally dispose of the matter in dis-
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pute, I think for the purpose of these rules it is final. On the other handif their decision if given one way will finally dispose of the matter in dis-pute, but if given in the other will allow the action to go on then I thinkit is not final but interlocutory”. Significantly in Ranjith v Kusumawathie so(supra) the matter considered was an application under section48(4)(a)(iv) of the Partition Law.
In the instant case the impugned order which is the subject matterof this final appeal arises from a “Schedule of shares" filed by theplaintiff-respondent in the court below. A schedule of shares on theface of it at most could form only a part of an interlocutory decree.Even if one was to consider an interlocutory decree to be final in termsof the provisions of the Partition Law as also stated by the learnedCounsel for the appellant, such interlocutory decree would not consist“only” of a schedule of shares and would by no means be a complete 60interlocutory decree having the effect of a final judgment. Besides,even if one was to apply the test as stated by Lord Esher, referred toin Ranjith v Kusumarwathie (supra) and even if one assumes that the3rd defendant-appellant would succeed in the appeal and the DistrictJudge’s order accepting the plaintiff-respondent’s schedue of sharesis rejected, the action would have to go on and will not dispose of thematter in dispute.
Accordingly the impugned order is undoubtedly an interlocutoryone attracting the provisions of section 754(2) of the Civil ProcedureCode necessitating the 3rd defendant-appellant to prefer an appeal 70with the leave of the Court of Appeal first had and obtained.
This appeal is therefore clearly misconceived and needs to be dis-missed in limine.
The determination of a final judgment or an interlocutory orderwould not apply differently to partition actions although the procedurein partition could be termed to be unique.
For the aforesaid reasons the preliminary objection is upheld andthe appeal is dismissed with costs.
WIJAYARATNE, J. – I agree.Appeal dismissed.
PUWALAWATHIE PERERA v. SOMARATNE AND ANOTHER