006-NLR-NLR-V-67-W.-N.-R.-SAMICHCHI-APPU-Petitioner-and-N.-BARONCHIHAMY-and-others-Respondents.pdf
Present: Abeyesundere, J., and G. P. A. Silva, J.W. N. R. SAMICHCHI APPU, Petitioner, andN. BARONCHIHAMY and others, Respondents
S. C. 166/64—Application for Conditional Leave to Appeal under theprovisions of the Appeals (Privy Council) Ordinance in S. C. 534 of
1960jD. C. Tangalle, 6205
Privy Council—Conditioned leave to appeal—Judgment allowing writ of execution ofa fined decree—Finality o* such judgment—Appet.ls (Privy Council) Ordinance,Schedule, Rule 1 (a).
Where the rights of parties in an action in the District Court have beenfinally determined, a judgment of the Supreme Court dismissing an appealfrom an order of the District Court allowing an application for writ to executethe decree is not a final judgment within the meaning of Rule 1 (a) of the Scheduleto the Appeals (Privy Council) Ordinance.
Application for conditional leave to appeal to the Privy Council.
O. T. Samerawickreme, for the Defendant-Petitioner.
U. W. Jayewardene, Q.C., with E. A. G. de Silva, L. C. Seneviratneand Miss R. de Zoysa, for the Plaintiffs-Respondents.
October 15, 1964. Abeyesundere, J.—
The plaintiffs-respondents instituted action No. 6205 in the DistrictCourt of Tangalle against the defendant-petitioner and obtained adecree in their favour. The defendant-petitioner appealed from thatdecree and this Court dismissed that appeal by its judgment dated22nd October 1959. Thereafter the plai itiffs-respondents made anapplication to the District Court of Tangalle for writ to execute thedecree which they had obtained in the aforesaid action. The DistrictCourt of Tangalle allowed the writ by its order 24th October 1960. Thedefendant-petitioner appealed from that order and this Court dismissedthat appeal by its judgment dated 14th May 1964. The defendant-petitioner has, by his petition dated 22nd May 1964, applied to thisCourt for leave to appeal to Her Majesty in Council from the aforesaidjudgment of this Court dated 14th May 1964.
The defendant-petitioner relies on Rule I (a) of the Rules in the Scheduleto the Appeals (Privy Council) Ordinance. Mr. H. W. Jayewardene,Q.C., who appears for the plaintiffs-respondents, submits that thejudgment of the Supreme Court from which the defendant-petitionerseeks to appeal to Her Majesty in Council is not a final judgment withinthe meaning of Rule 1(a) of the aforesaid Rules. The finality of ajudgment must be determined according to the principle that the finalitymust relate to the suit. That principle was expounded by the PrivyCouncil in the case of Abdul Rahaman v. L>. K. Cassim reported in
All India Reports (1953) Privy Council, page 58, and applied by this Courtin the judgment in the case of Palaniappa Chetty v. The MercantileBank of India Ltd. reported in 43 N. L. R., page 352.
All the rights of the parties that had to be determined in the aforesaidaction were determined by the decree entered in that action. Theappeal made from that decree to this Court was dismissed under Section769 (2) of the Civil Procedure Code as the appellant had not appearedeither by counsel or in person. Mr. G. T. Samarawickreme, who appearsfor the defendant-petitioner, submits that the judgment of this Courtdismissing the appeal under the aforesaid section is not final as theproviso to the aforesaid section enables an appeal which is dismissedunder that section to be reinstated and that, therefore, the judgmentof this Court did not finally determine the rights of the parties in theaforesaid action. The appeal of the de fend ant-appellant which wasdismissed under the aforesaid section was not reinstated. Even if thejudgment dismissing that appeal did not finally determine the rightsof the parties in the aforesaid action, the decree of the District Courtof Tangalle entered in the aforesaid action is final as the appealableperiod has elapsed.
The judgment of the Supreme Court dated 14th May 1964 dismissingthe appeal of the defendant-petitioner from the order of the DistrictCourt of Tangalle allowing writ did not determine any of the rights ofthe parties that had to be determined in the aforesaid action. Asalready stated, all those rights were finally determined by the decreeentered in the aforesaid action. I hold that the judgment of this Courtdated 14th May 1964 is not final in relation to the suit and is thereforenot a fivial judgment within the meaning of Rule I (a) of the aforesaidRules. The defendant-petitioner’s petition is dismissed with costs.
G. P. A. Silva. J.—I agree.
Application dismissed.