SIRIWARDENA v. AIR CEYLON LTD

017-SLLR-SLLR-1982-2-SIRIWARDENA-v.-AIR-CEYLON-LTD.pdf


544
Sri l.anka Law Reports
(1982) 2 S I-R.
SIRIWARDENA
v.AIR CEYLON LTD.
COURT OF APPEAL
ATUKORALE; J., AND L.H. DE ALWIS, J.
C.A.(LA) 67/82..
D C. COLOMBO 3336/Z.
JUNE 15, 1982
Civil Procedure Code, sections, 189 and 754(1) – Amendment of judgment anddecree by judge – Does final order dispose of rights of parties? – Leave to appealagainst final order .
The appellant sued the respondent for wrongful dismissal and claimed inter aliathe following relief.
Declaration that he continues to -be in employment of the respondent inand after September, 197-9
Payment of salary at Rs.. 1,620/- p.m.- from September, 1979.
Payment of a sum of Rs. 3,240/- as salary for the months of Septemberand October. 1979.
Payment of arrears in a $um of Rs. 40,000/- together with legal interest thereon.
Judgment was entered ex parte-for-appellant in terms of (i), (ii) and (iv), anddecree was entered in accordance with judgment.
The appellant applied for''execution of decree but the respondent sought toamend the judgment and decree on grounds of an accidental slip made by the Judge.
After inquiry the Judge came to the conclusion that (iv) should be corrected toread; as (iii) and amended, .the decree accordingly.-
The appellant moved court for leave to appeal against this order.
The respondent opposed it on the ground that the order made is a final orderhaving the effect of a final judgment and therefore the application for leave toappeal was misconceived.
CA
Siriwartlena r. Air Ceylon l.td. (I..II tie Ain is. J.)
545
Held –
That order made amending judgment and decree was one which finally disposedof. the rights of parties and was a final order from which an appeal lay directto the Appeal Court and that the application for leave to appeal was misconceived.
Cases referred to:
Salomon v. Warner and others (18VI) / Q.B.D., 734.
Bozson »*. Altrichman Urban District Council 11903) l K.B.D. 547:
Ranjilal and.others v. Ratanachand and others (1920) A.l.R.tS6.
Abdul Rahaman and others v. Cassim Sons and another (1933) A.I.R, 58 (P. C«I-
Usoof v. The National Bank of India Ltd. (1958) 60 N.L.R. 381.
Krishna Porshad Singh v. Moti Chand (1913) 40 Cal 635.
APPLICATION for leave to appeal from orderof the District Court of Colombo
Nimat Senanayake, S.A. with K.P. Gunaratne and Saliva Mathew for appellant.
H. W. J aye war dene, Q.C. with M. Kandasamy. K. Thevarajah and 5. Sittampalam.for respondent.
Cur.adv.vult.
July 9, 1982.
L.H. DE ALWIS, J.
This is an application for leave to appeal from the order of theDistrict Court of Colombo, dated 10.5.82, amending the judgmentand decree entered in the case.
The appellant sued the respondent for wrongful dismissal fromservice and claimed inter alia the following reliefs:-
(q) a declaration that he continues to be in the employment of therespondent Corporation in and after September 1979;
(epj) the payment of his salary at Rs. 1,620/- per month fromSeptember 1979;
(ffO the payment of a sum of Rs. 3,240/- as salary for the monthsof September and October 1979;
(Cfi) the payment of damages in a sum of Rs. 40,000/- together withlegal interest thereon.
During the pendency of the action steps were taken by the Presidentof the Republic, as Minister of Defence, to dissolve the respondentCorporation and a liquidator was appointed from 1.1.1980. On 13.3.80the case was taken up for trial and in view of the absence of therespondent, judgment was entered ex parte for the appellant asprayed for in terms of paragraphs (q), (cpo). and (q0- Decree wasthereafter entered in accordance with the judgment.
546
Sri Lanka Law Reports
(1982) 2 S L R.
It is not relevant to refer to any other facts for the purposes ofthis application, except the application the liquidator made to amendthe judgment and decree in terms of section 189 of the Civil ProcedureCode .on the grounds of an accidental slip or omission made by thelearned District Judge in his judgment. This application was madeat the stage when the appellant applied for execution of the decree.
After inquiry the learned District Judge was of the view that itwas not clear from the typewritten judgment whether the reliefgranted by the Court was in terms of paragraphs (qt) or (qO of theprayer to the plaint. After a consideration of the evidence of theappellant and the judgment the learned Judge came to the conclusionthat the letter (qi) in line 8 of paragraph 1 of the Judgment is not(qO but (q0- He then made Order dated 10.5.82 that the judgmentand decree should be amended accordingly on account of the accidentalslip in the judgment. He also directed that the decree should beamended in regard to the relief claimed in paragraph (q) of theprayer to the plaint as follows:-
“To pay the plainfiff Rs. 6,480/- as salary from September1979 to December 1979 at the rate of Rs. 1,620/- per month.”
It is from this order allowing the amendment set out above thatthe appellant now moves this court for leave to appeal, under section754 (1) of the Civil Procedure Code.
Learned Queen’s Counsel for the respondent opposed the applicationon the ground that the order made by the District Court is a finalorder having the effect of a final judgment under • section 754 (5),and an application for leave to appeal to this. Court therefore doesnot lie. Being a final order or judgment, an appeal lay direct to thisCourt under section 754 (1) and not with the leave of Court firstobtained in terms of section 754 (2) Civil Procedure Code.
The contention of learned Senior Attorney for the appellant onthe other hand is that the order of the District Court is not a finalorder but an interlocutory order and that an appeal lies to this Courtwith leave under section 754 (2).
The question that arises for determination, therefore, is whetherthe order of the District Judge amending the Judgment and decreeis a final or an interlocutory order.
“Judgment” and “order” are defined in section 754 (5) as follows:-
. “Notwithstanding anything to the contrary in this Ordinance forthe purpose of this chapter – ‘judgment4 means any judgment or
<V4…riwardena i'. Air Crylim l.nl. <1.11 .-iMu. ./ )547
order having the effect of a final judgment made by any Civil Court;and ‘order- means “the final expression of any decision in any civilaction, proceeding or matter which is not a judgment."
Learned Queen’s Counsel for. the respondent contended that anyorder which finally disposes, of the rights of parties to the matter,has the effect of a final judgment and the order affecting those rightshave to be appealed from. In the present case, he submitted, theorder for the amendment of the decree is a final order since thematter is disposed of whether the decision is right or wrong. If*theorder is right then the judgment would be amended. On the otherhand if it is wrong, the original judgment and decree would stand.In either event there is an end to the dispute between the parties.Hence it is argued, that the order is a final order and leave toappeal does not lie. Learned Queen's Counsel cited two unreportedcases, one of this court in CA/LA. 133/81 C.A. Minutes of 12.5.82and the other of the Supreme Court in S.C. 6/81 C.A. 997/80 D.C.Colombo 3290 ZL-S.C. Minutes of 20.11.81.
The two unreported cases cited by learned Queen s Counsel thoughthey do not have a direct bearing on the facts of this case arcnevertheless helpful for the authorities considered there, which throwconsiderable light on the question of what a final order is.
In Salaman v. Warner and others (1) it was held that a “finalorder” is one made on such an application or proceeding that, forwhichever side the decision is given, it will, if it stands, finallydetermine the matter in litigation. Lord Esher. M.R! said:-
“The question must depend on what would be the resultin the Divisional Court, assuming it to be given in favourof either of the parties. If their decision, whichever way itis given, will if it stands, finally dispose of the matter indispute, I think that for the purposes of these Rules it isfinal. On the other hand, if their decision, if given in oneway, will finally dispose of the matter in dispute, but. ifgiven in the other, will allow the action to go on, then Ithink it is not final, but interlocutory."
Fry, J., in the same case said;
“I conceive that an order is ‘final’, only where it is madeupon an application or other proceeding which must, whethersuch application or proceeding fail or succeed, determinethe action. Conversely 1 think that an order is ‘inteVlecutory’where it cannot be affirmed that in either event the actionwill be determined."
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Sri Lanka Law Reports
(m2) 2 S L R
In Bozson y Altrincham Urban District Council (2) 547, LordAlverston, C.J. said:
“It seems to me that the real test for determining thisquestion ought to be this: Does the judgment or order, asmade, finally dispose of the rights of the parties? If it does,then I think it ought to be’treated'as a finaVoVder; but ifit does not, it is then, in my opinion, an interlocutory order.”
Iij Ranjilal and others v Ratanachand and others (3), it was held thatan order refusing a stay of a suit under section .19 of the ArbitrationAct is not final. Viscount Cave said:
“The question as to what is a final order was considered bythe Court of Appeal in the case of Salomon V. Warner (1)and that decision was followed by the same Court,.in, the caseof Bozson y. Altrincham Urban District Council (2). The effectof these and other judgments is that an order is final if itfinally disposes of the rights of parties. The orders now underappeal do not finally dispose of these rights, but leave themto be determined by the Courts in the ordinary way”.
In Abdul Rahaman and others v. Cassim Sons and another (4) itwas held that the test of finality is whether the order “finally disposesof the rights of the parties”. Where the order‘does not finally disposeof these rights, but leaves them “to be determined 6y the Courts inthe ordinary way”, the order is not final. That the order “went tothe root of the suit, namely, the jurisdiction of the Court to entertainit”, is not sufficient. The finality must be a finhlity .in relation tothe suit. If, after the order, the suit is still a live suit in which therights of the parties have still to be determined, no appeal lies againstit under section 109(a).”'
In the present case, learned Senior Attorney for the appellantsubmitted that judgment and decree had already been entered, finallydetermining the action between the parties and an order made atthe stage of the application for execution of the decree is of aninterlocutory nature. There could not be a further final judgmentand decree between the parties. The answer to this submission isgiven by Sansoni, J., as he then was, in Usoof v. The National Bankof India Ltd., (5). He said:
“I regard that decision (Krishna Porshad Singh v. Moti Chand(6) as authority for the view that there can be a final orderor judgment ■ ■" exemtior- proceedings between the p
Siriwttrdvnu i*. Air Crytt>n l.ttl. (I .li tie t/ut. J.i
549
('A
to the action…. It seems to me to dispose of the argumentthat when the mortgage decree was entered in this action ithad been finally determined, and that there could be no furtherfinal judgment as between the parties. While it is true that ajudgment is not final unless it finally disposes of the rights of
the parties I do not see why there cannot be a final
judgment in execution proceedings, whether those proceedingsare between the parties to the action or not."
. In the Indian case of Krishna Per shad Singh (6) referred to by Sanso-ni, J., Lord Moulton held that the order of the High Court refusing toset aside the sale where the property sold in execution of the decreewas purchased by the judgment-creditor was a final order which dealtfinally with the rights of the parties, and that an appeal to the PrivyCouncil lay to the judgment-debtor.
In the instant case, the order made amending the judgment anddecree is one which finally-disposes of .the rights of the parties tothe matter and is a final order from which an appeal lies direct tothis court * under "section 754 (1) of the? Civil Procedure Code. Theapplication for leave to appeal from this order in terms of section754 (2) of the Civil Procedure Code is wrongly constituted and mustbe' refused.
I dismiss the application with costs.
ATUKORALE, J. — 1 agree.
Application dismissed.