001-SLLR-SLLR-2006-V-1-WIJEMANNE-vs.-BENJAMIN-PERERA-AND-ANOTHER.pdf
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Wijemanne vs Benjamin Perera and Another
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WIJEMANNEVSBENJAMIN PERERA AND ANOTHERCOURT OF APPEALAMARATUNGA, J ANDWIMALACHANDRA, JCALA 294/2003DC. COLOMBO 14185/MRSEPTEMBER 14 ANDOCTOBER 6, 2004
Civil Procedure Code, sections 284 and 754 (5) – Order made under section214- Is it a final order or and interlocutory order?
HELD
On an application made in terms of section 284 of the Code, the order that willfinally be delivered by court is not an interlocutory order as there is nothingmore to be decided by court in the ordinary way in the same application. Directappeal lies against such order.
APPLICATION by way of leave to appeal from an order made by the DistrictCourt of Colombo.
Cases referred to :
Siriwardena vs Air Ceylon Ltd. (1984) 1 Sri LR 286
Peter Singho vs Wydeman – Sri Skantha Law Reports – Vol. I page 88 ;(1983) 2 Sri LR 238 (SC)
Brooke Bond (Ceylon) Ltd., vs Stassen Exports Ltd., and another (1990)
1 Sri LR 61 overruled by (1990) 2 Sri LR 63(SC)
I. S. de Silva for intervenient plaintiff-respondent-respondentP. S. Gunawardena with M. C. Wijesinghe for petitioner – respondent.
Cur. adv. vult.
November 19, 2004WIMALACHANDRA, J.
This is an application for leave to appeal arising from the order of thelearned District Judge dated 23.07.2003. When this application was taken
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up for inquiry the learned counsel for the intervenient -plaintiff – respondent- petitioner (hereinafter referred to as the petitioner) brought to the noticeof Court that the petitioner has already filed an appeal against the saidorder. At the commencement of the inquiry a preliminary question wasraised by the petitioner – respondent (hereinafter referred to as therespondent) in that whether the impugned order is a final order or an interimorder.
Briefly, the facts as set out in the petition are as follows
The petitioner instituted action against the House and Property TradesLimited (defendant – respondent) for the recovery of a sum of Rs.2,400,000 together with interest thereon at 20% per annum from01.10.1999 until payment in full. After the trial the judgement was enteredagainst the defendant – respondent as prayed for in the plaint. Thereafterthe District Court on an application made by the petitioner issued a writand the land described in the plaint was sold by public auction inexecution of the decree. The sale took place on 24.04.1999 and therespondent purchased certain allotments of land at the fiscal sale.
The total consideration was Rs.3,600,000. Thereafter, a fiscal conveyancewas executed in favour of the respondent. When the respondent sought todevelop the said land, it was found that it was possessed by a third party,namely, R. A. L. Ranjith de Alwis. The respondent had done a search inthe Land Registry, Colombo and it was revealed that the defendant -respondent, the said, House and Property Trades Limited had sold thesaid allotment of land by deed No. 1909 dated 28.08.1998 for a sum ofRs. 500,000 before the fiscal sale. Thereafter, the respondent made anapplication to Court in terms of Section 284 of the Civil Procedure Codeand sought a money decree against the petitioner. The petitioner filedobjection. The Court directed the parties to file written submissions.Thereafter, the Court made order on 23.07.2003 and directed the petitionerto pay a sum of Rs.450,000 to the respondent. It is against this order thatthe petitioner has filed this application for leave to appeal.
The question before Court is whether the order complained of amountsto a final judgment within the meaning of Section 754(5) of the Civil ProcedureCode.
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Wijemanne i/s Benjamin Perera and Another (Wimatachandra J.)
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In the case of Siriwardena Vs. Air Ceylon Ltd.^ Sharvananda, J. (as hewas then) after analyzing 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 judgement 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 alive 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.
The mere fact that the 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.
It was held in the case of Peter Singho vs. Wydeman(2) that an ordermade by the District Court in dismissing an application made under Section86(2) of the Civil Procedure Code is a final order and direct appeal liesagainst such an order.
Accordingly, in the instant case the test to be applied to determinewhether an order has the effect of a final judgment, shall be decided byexamining whether the impugned order has the character of a final judgmentin relation to the suit. It is to be observed that, on an application made interms of Section 284, the order that will finally be delivered by Court is notan interlocutory order as there is nothing more to be decided by the Courtin the ordinary way in the same application.
It was held in the case of Brooke Bond (Ceylon) Ltd. t/s. StassenExport Ltd. and another(3> that interlocutory appeals are appeals frominterlocutory orders. In law an interlocutory order is one which is made orgiven during the progress of an action, but which does not dispose of therights of the parties. It is incidental to the principal object of the action,namely the judgement.
In the instant case it seems to me that the order delivered by the learnedJudge on 23.07.2003 is not an incidental order nor is it an order made ona cardinal point in the suit. As far as the parties are concerned, after the
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delivery of the said order, all proceedings in respect of that application hascome to an end. That is, the said order for the purpose of this applicationis final and it stands finally disposing of the matter in dispute.
Therefore, I hold that the order made by the learned Judge is a finalorder which has the effect of a final judgement. Accordingly, the reliefssought by the petitioner in this application should be by way of a finalappeal. Since, the petitioner has already filed an appeal in respect of thesaid order, I make order that this application be taken up along with thefinal appeal.
AMARATUNGA, J. -1 agree.Leave to appeal application to be taken up with the final appeal.