091-NLR-NLR-V-51-JAN-SINGHO-Petitioner-and-ABEYWARDENE-et-al-Respondents.pdf
Jan Singho v. Abeywardene
1950Present Dias S.P.J. and Pulle J.
JAN SINGHO, Petitioner, and ABEYWARDENE et aiRespondents
S. C. 613~~Application for revision in D. C. Negombo, 15,116
Civil Appellate Rules, 193$—Meaning of “ Final Appeal " and “ InterlocutoryAppeal
H instituted proceedings for divorce against his wife W who, while denyingthe charges, counter-claimed for a judicial separation. W also obtainod before
DIAS S.P.J.—Jan Hittgho v. Abeywardeno
1-rial an order for alimony pendente life. In (he main action H’fi suit wasdismissed, wh-.io on Ws counter-claim the Court decreod a judicial separationbut mudo no provision for permanent alimony. H appealed against thatdecree. W then asked for an order that alimony should continue and theCourt thereupon mode an order. From (bat order H preferred a second appeal.
tidd, that tho appeal against the main decree was a “ final ” appeal whilethe second appeal in regard to W’s application for alimony wasan “ inierlocut-uv " appeal within tho moaning of tho Schedule to the CivilAppi'lluia K-ul:-v, I:)GS.
THIS wtui an application lor revision in respect of an order of theDistrict Court, Negorabo.
Cyril E. 8. Perera. with T. li. Diwanayakc, for the petitioner.
G. T. fiamaraicickreme, for tho 1st defendant respondent.
Cur. adv. vuti.
May 10, 1950. Dias J.—
The plaintiff petitioner instituted proceedings for divorce against hiswife, the 1st respondent, who, while denying her husband’s charges,counter-claimed for a judicial separation. She had obtained beforetrial an order against the petitioner for tho payment of alimony pendente
lite.
Tho District- Judge dismissed the petitioner’s action against the letrespondent, and entered a decree for judicial separation on her counter-claim. Tho decree said nothing about the payment of permanentalimony. The petitioner appealed against that judgment and decree,and that appeal is now pending.
The 1st respondent applied to the District Judge for alimony untilthe appeal was decided. Tho petitioner opposed that application. TheDistrict Judge directed that tho original order for alimony pendente litewas to bo operative until the pending appeal was decided. Tho Judgeheld that after that appeal was decided, an order for permanent alimonywould be made by him after inquiry, if it became necessary to do so.From that order, too, the petitioner bled an appeal; and it is with thatappeal we are now concerned.
The question for decision is whether that appoal is a “ Final Appeal ”,or whether it is an “ Interlocutory Appeal ” within tho meaning of theSchedule to “ The Civil Appellate Rules, 1038
Those Rules were framed by tho Judges of the Supreme Court undersections 49 and 60 of the Courts Ordinance. They provido for the typingof the briefs in civil cases in wlrich appeals have been filed. Thosebriefs are made by the sfcalf of tho original Court, and the appellant
* •• Cajon Government Gazette " .o. 8.44 i of March 2i, 1939, and also reproduced;)t p. tj of tile 1941 Suppl-inont of Th-.- Subsidiary Legislation of Ceylon betweenJune 30, 1933, and January 1, 1941.
1*J. H. A 97620 <6f!>0)
370
DIAS S.P.J.—Jan Singho v. Abeyunrdsm ■
has to pay the fees prescribed in the Schedule to the rules. Rule 4provides that the failure of an appellant to make application for type-written copies in accordance with the requirements of the rules, rendersthe appeal liable to be abated.
The Schedule to the rules provides for three classes of civil appeals—(a) Final appeals from District Courts, (6) Interlocutory appeals fromDistrict Courts, and (c) Appeals from Courts of Requests. There are no“ Interlocutory appeals ” in Court of Requests cases—Manchokamy v.Appuhamyi. In the case of “Final appeals ” from District Courts in“ Matrimonial cases ”, such appeals are to be paid for as prescribed inClass 4, i.e., the fee is Rs. 15. In the case of “ Interlocutory appeals ’’from District Courts, while for “ Partition actions ” the fee is Rs. 12,“ in all other interlocutory appeals ’’ the fee is fixed at Rs. 8.
Therefore, in the present case, if the appeal is a “ Final appeal ”, theaotion being a “ matrimonial action ”, the fee for typewritten copieswould have to be Rs. 15, whereas, if the appeal is to be deemed an“ Interlocutory appeal ”, the fee would be only Rs. 8.
The petitioner treated his appeal as being an “ Interlocutory appeal”,but by mistake paid a sum of Rs. 12, whereas the prescribed fee is onlyRs. 8. The 1st respondent, however, was able to persuade the DistrictJudge that this appeal was a “Final appeal ”, and succeeded in obtainingan order that the appeal had abated on the ground that the proper feeof Rs. 15 had not been paid. Hence this application in revirion.
Unlike in the Courts of Requests, an appeal lies as of right against everyorder, judgment, or decree in a District Court—s. 73, Courts Ordinance.The Courts Ordinance, however, draws no distinction between appealswhich are “ final ” and those which are “ interlocutory ”. It has,nevertheless, been the practice to classify appeals in District Courtcases into these two categories ; and the Legislature has, at least in onecase, recognised this distinction—see seotion 27 of the Land AcquisitionOrdinance (Chapter 203) where it is provided that appeals to the SupremeCourt under that Ordinance, shall be subject to the rules and practiceprovided for and observed in appeals from " interlocutory ” orders ofDistrict Courts. The Civil Appellate Rules, 1938 also recognise thatdistinction.
What then is the distinction between a “Final appeal” and an“ Interlocutory appeal ” ? There is no statutory definition of eitherexpression.
Counsel for the 1st respondent cited the case of Arlis Appuhamy v.Simon* and similar cases in regard to the construction placed on the words“ final judgment ” as used in section 36 of the Courts Ordinance in regardto appeals from Courts of Requests. In my opinion, those oases have norelevance to the question which wises in the present case. A “ Finaljudgment ” means a judgment awarded at the end of an action whichfinally determines or completes the action, and a “Final appeal ” is an
» {1905) 8 N. L. B. 307.
» {1947) 48 S. L. B. 298.
DIAS 8.P.J.—Jan Singho v. Abeywardcnt
371
appeal from such a judgment. On the other hand, an “ Interlocutoryjudgment ” is a judgment in an action at law given upon some defence,proceeding, or default which is only intermediate, and does not finallydetermine or complete the action. An “ Interlocutory appeal” is an appealfrom such a judgment *. I am indebted to my learned brother who hasdrawn my attention to the recent case of Egerton v. Shirley2. It isregrettable that the Bench should have to search for authorities which itis the duty of the Bar to have cited at the argument. Egerton v. Shirleymakes the meaning of these expressions clear. It was held in that casethat an order made by a master under R. 8. C. Order 14 giving leave to theplaintiff to sign judgment against the defendant in an action broughtunder R. S. C. Order 3, Rule 6, is a “ Final order ” which finally disposesof the rights of parties. Where, at the same time, the master givesleave to the plaintiff to proceed to execution under the Courts (EmergencyPowers) Act, 1943, and a Judge affirms that order, it isan “interlocutoryorder ” within the Supreme Court of Judicature (Consolidation) Act,1926, section 16. Du Parcq L.J. said: “ No definition of the terms‘ Final ’ and ‘ Interlocutory ’ is contained either in the rules of theSupreme Court or in the statute …. In our opinion, the rightsof the parties in this case were finally disposed of when leave to signjudgment was givon by the master. All that remained was to set inmotion, or to retard the machinery for enforcing, and, in that sense,working out those rights. The order made by Cassels J. merely removeda stay which the statute imposed in the absence of such an order. Itno more finally disposed of the rights of the parties, than does, for instance,the issue of a writ of possession to a plaintiff whose right to possessionhas already been determined. On this ground, we are satisfied that theorder was an ‘ interlocutory ’ one within the meaning of theBuies
Applying these principles to the facts of this case, it is clear that a“ final ” judgment was pronounced when the District Judge entereddecree dismissing the plaintiff petitioner’s case and ordered a judicialseparation on the counter-claim of the 1st respondent. The 1st respon-dent’s application for a continuance of alimony thereafter and the ordermade thereon are clearly “ interlocutory The very terms of the ordershow that it finally determines nothing. The appeal from that ordertherefore must be deemed to be an “ Interlocutory appeal
The petitioner was, therefore, right in treating his appeal as being an“ Interlocutory appeal ”, and the District Judge was wrong in orderingthat appeal to abate. The order of abatement is set aside with costs.The District Judge is directed to transmit the record and the briefs tothis Court for disposal in due course.*
Pulle J.—I agree.
Order ael aside. 1
1MozLty A Whitdey'a Judicial Dictionary, pp. 139,171; abo tec Stroud"$ JudicialDictionary A Wickremonayakc's Judicial Dictionary.
*{1945) 1 R. B.107.