018-SLLR-SLLR-2003-V-2-JAYAKODY-v.-SARASWATHIE.pdf
CA
Jayakody v Saraswathie (Nanayakkara, J)
133
JAYAKODY
v
SARASWATHIE
COURT OF APPEALUDALAGAMA, J., ANDNANAYAKKARA, J.
C/A 1690/91 (F)
D.C. NUWARA ELIYA 693/TOCTOBER 21, ANDNOVEMBER 27, 2002
Civil Procedure Code, sections 712, 713, 754(i) and 754 (5), – Order fixingan application for discovery of property – Is it a final order or an interlocutoryorder?
Held:
It is only an order made after due inquiry under section 714depending on the nature and the effect of the order, if at all, that finality can beattached.
The impunged order does not attract the finality contemplated.APPEAL from the order of the District Court of Nuwara Eliya.
Cases referred to:
Siriwardena v Air Ceylon Ltd., – (1984) 1 Sri LR 286.
Ranjitv Kusumawathie – (1998) 2 Sri LR 232.
S.F.A. Cooray for 6th respondent appellant.
C. V. Vivekanandan with A. Paramalingam for petitioner-respondent.
Cur.adv.vult.
December 10, 2002
NANAYAKKARA, J.
The appellant has preferred this appeal against an order ofthe learned District Judge in fixing an application made by therespondent for the purpose of discovery of property under section712 of thie Civil Procedure Code, for an inquiry to be held undersection 714 of the Civil Procedure Code.
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Sri Lanka Law Reports
(2003j 2 Sri L.R
At the hearing of this appeal, counsel for the petitioner-respondent (respondent) raising a preliminary objection to themaintainability of the appeal, urged that the appeal be dismissed inlimine, as the order against which the appeal has been preferred isnot appealable in terms of the section 754 (1) of the Civil ProcedureCode.
The question now for determination in this appeal is whetherthe order against which this appeal has been lodged, has the effectof a final judgment which is subject to an appeal in terms of section754(5) of the Civil Procedure Code.
From the material placed before this court the learned DistrictJudge on the presentation of a petition under section 712 of theCivil Procedure Code acting in conformity with the procedural
requirements, has taken the next logical step by fixing it for inquiryto be held under section 714 of the Civil Procedure Code.
The very fact of fixing an application for inquiry, in my view, isan incidental order in terms of section 754 (5) of the Civil ProcedureCode which does not attract the finality contemplated by that sec-tion as it does not finally dispose of the matter in dispute. As far asthe facts of this case are concerned, it is only an order made afterdue inquiry under section 714 of the Civil Procedure Code depend-ing on the nature and the effect of the order, if at all, finality can beattached to it.
In this connection it should be observed, that the tests adopt-ed in the cases of Siriwardena v Air Ceylon1 and Ranjit vKusumawathie,2 would be useful in distinguishing a direct appealfrom an appeal with the leave of the court first obtained. In the cir-cumstances, I am of the view that order dated 31.01.1991 fromwhich this appeal has been preferred is of an interlocutory naturein respect of which no direct appeal lies. Therefore the appellant isprecluded by the provisions of the Civil Procedure Code seekingrelief against the order of the learned District Judge by way of directappeal. Therefore upholding the preliminary objection of therespondent I dismiss the appeal casting the appellant in cost in asum of Rs. 5000/-.
UDALAGAMA, J. – I agree.
Appeal dismissed.
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