SOMATILAKA BANDARA vs PEOPLES BANK

003-SLLR-SLLR-2005-V-2-SOMATILAKA-BANDARA-vs-PEOPLES-BANK.pdf


10
Sri Lanka Law Reports
(2005) 1 Sri L. R.
SOMAT1LAKA BANDARAVSPEOPLES BANKCOURT OF APPEALAMARATUNGA, J.,WIMALACHANDRA, J.,CALA 8/2004D.C. MAHO 5700/MAUGUST 25, 2004 ANDOCTOBER 7, 2004
Civil Procedure Code ■ Sections 754, 754(1), 754(5) 757 – Debt Recovery Act,No. 2 of 1990 – Amended by Act, 9 of 1994 – Decree Nisi entered – Objectionsfiled – Decree Nisi made absolute – Is it an Interlocutory Order or a FinalOrder ?
The Court entered Decree Nisi in the first instance and after Objectionswere filed by the Defendant, the Court made the Decree Nisi absolute. TheDefendant sought leave to appeal from the said Order.
HELD-
The Order has the effect of finally disposing of the rights of the parties,it has the effect of a final Judgment – only the execution of the decreeremains.
The impugned order is a final Judgment in terms of Section 754(5).Leave to appeal does not lie against the said Order.
APPLICATION for Leave Appeal from an Order of the District Court of Maho.Cases referred to :
1. Siriwardana vs Air Ceylon Ltd., – 1984 1 Sri LR 286.
S. B. Dissanayake for Defendant Appellant,Ronald Perera for Plaintiff Respondent
Cur. adv. vult.
CA
Somatilaka Bandara vs Peoples Bank (Wimalachandra, J.)
1 I
November 17, 2004WIMALACHANDRA, J:
It was agreed between the parties that this judgment should apply tothe C. A.L. A. No. : 07/2004.
The plaintiff-respondent (hereinafter referred to as the plaintiff) institutedthe two actions No. 5700/M and No. 5701/M in the District Court of Mahoagainst the 1st defendant-petitioner (hereinafter referred to as the 1stdefendant) and against the 2nd and 3rd respondents (hereinafter referredto as the 2nd and 3rd defendants) in terms of the provisions of the DebtRecovery Act, No. 2 of 1990 as amended by Act, No. 9 of 1994 for therecovery of sums of Rs. 169,887.74 and Rs. 166,600 respectively.
In both cases the plaintiff sought order nisi in the first instance. Thelearned District Judge entered order nisi to be made absolute in the eventof the defendants not showing cause on a day appointed for that purpose.Thereafter the defendants filed objections and the matter was taken up forinquiry on 19.12. 2003, and after the inquiry, the learned Judge made thedecree nisi absolute, in both cases. It is against this order the defendantshave filed these two applications.
When these two applications were taken up in this Court for inquiry, theplaintiff raised a preliminary objection that leave to appeal does not lie andas such the defendants ought to have filed a final appeal and an applicationin revision if they so desired.
Section 6(3) of the Debt Recovery (Special Provisions) Act, No. 2 of1990 as amended by Act, No. 9 of 1994, states thus ;
" Where the defendant either fails to appear and show cause or ha vingappeared, his application to show cause is refused, the Court shallmake the decree nisi absolute "
Section 13(1) states as follows :
"Subject to orders of court, where a decree nisi entered in an actioninstituted under this Act is made absolute, it shall be deemed a writ of
12
Sri Lanka Law Repons
(2005) 1 Sri L. R.
execution duly issued to the fiscal in terms of 225(3) of the CivilProcedure Code, and notwithstanding anything to the contrary in anyother written law, the execution of the same shall not be stayed."
Therefore, upon a plain reading of the aforesaid sections it appears thatonce the decree absolute is entered, it will have the effect of a final judgmentin this case.
The defendant has filed a leave to appeal application from the orderdated 19.12.2003 in terms of Section 757 of the Civil Procedure Code.
Section 754 speaks of mode of preferring an appeal. Section 754(5)states that ;
”Notwithstanding anything to the contrary in this Ordinance, for thepurpose of this Chapter –
'Judgment' means any judgment or order having the effect of a finaljudgment made by any Civil Court; and
'Order' means the final expression of any decision in any Civil actionproceeding or matter, which is not a judgment."
it appears that the word "judgment" given in the section, encompassesnot only judgment which finally disposes of the rights of the parties butalso all those orders made in the course of civil proceedings which havethe effect of a final judgment.
In the case of Siriwardena Vs. Air Ceylon {'K Sharvananda, J. (as thenhe was) after analysing several English authorities, laid down the followingtests to be applied to determine whether an order has the effect of a finaljudgment and so qualifies as a judgment under section 754 (5) of the CivilProcedure Code:
It must be an order finally disposing of the rights of the parties.
The order cannot be treated as a final order, if the suit or theaction is still left a live for the purpose of determining the rightsof the parties in the ordinary way.
The finality of the order must be determined in relation to thesuit.
CA
Jinadasa vs Ceylon Electricity Board and Others (Sripavan, J.)
1 3
The mere fact that cardinal point in the suit has been decidedor even a vital and important issue determined in the case, isnot enough to make an order a final order.
Accordingly, if the order has the effect of finally disposing of the rightsof the parties, it has the effect of a final judgment. In the instant case theimpugned order dated 17.12.2003 finally disposes of the rights of the partiesand only the execution of the decree remains.
In the circumstances, I am of the view that the order dated 19.12.2003is a final judgment in terms of section 754(5) of the Civil Procedure Codeand hence the defendant is not entitled to file a leave to appeal applicationagainst this order in terms of Section 754(2) of the Civil Procedure Code.Therefore, leave to appeal does not lie against the said order of the learnedDistrict Judge.
#
For these reasons the preliminary objection raised by the plaintiff isupheld and the two applications, namely, C. A. L. A. No. : 7/2004 andC.A. L. A. No. : 8/ 2004, are dismissed with costs.
Amaratunga, J., – I agree,
Application dismissed