Terrell A-G CJ:

AKML Letchumanan Chettiar is the chargee of certain land in the district of Ulu Langat, and is hereinafter referred to as the chargee.The chargers are ARMM Meyappa Chettiar (hereinafter referred to as Meyappa), and KMCT Murugappa Chettiar (hereinafter called Murugappa). The charge was originally for $20,000, but it has been reduced to $15,500 by the payment of $4,500.Murugappa alleges that he or his predecessors in title paid the whole of this $4,500, but this question has not yet been finally determined.The chargers are the proprietors of the land in equal shares, but they are jointly and severally liable for the whole of the money due upon the charge.

The chargee commenced these proceedings for the purpose of enforcing his charge by an order for sale.On the hearing of the Originating Summons, Murugappa alleged that each of the original chargors, now represented by Meyappa and Murugappa, received $10,000, and that having paid $4,500 there was only a balance of $5,500 due from him.This sum he paid into Court.He also alleged that Meyappa was the nominee of the charger himself, and this appears to be admitted by Meyappa who wrote a letter to that effect to the Registrar of the Court and took no pt in the proceedings.

The Originating Summons was heard before Cussen J who decided that the chargee was not concerned with matters of account between the chargors inter se, and was entitled to an order for sale to recover the whole sum of $15,500 due upon the charge.

Murugappa appealed to the Court of Appeal, which set aside the order of Cussen J and ordered inter alia that the Originating Summons be remitted to the Court below for hearing, and that the following issues be tried:

(i) Is Meyappa a nominee or trustee for the respondent (the charges) in respect of the half-share of the land registered in his name? and

(ii) what portion of the principal money secured by the charge had been repaid by or on behalf of the owners from time to time of the appellant's half-share of the said land?

The Court of Appeal also ordered that on the determination of the aforesaid two issues the respondent be at liberty, if so advised, to restore his application for the sale of the said land.

Letchumanan now applies for leave to appeal to the Privy Council.Mr. Ramani for the applicant argued, first, that the order of the Court of Appeal was a final judgment or order within the meaning of r. 2(a) of the rr. under the FMS Appeals Order in Council, and that the amount in dispute was of the value of STG500, or else that the claim involved a civil right inspecting property of that value, and that accordingly he was entitled to leave to appeal as of right.Alternatively he submitted that the question involved was one that by reason of its great general or public importance or otherwise ought to be submitted to the Privy Council for decision under r. 2 (b) of the same Rules.

As regards the first point, it is clear that the order with which this Court is concerned is the order of the Court of Appeal and it is immaterial to consider whether or not the order for sale made by Cussen J was or was not a final order.The order of the Court of Appeal in directing that certain issues be tried, and that the Originating Summons should be reheard, was in effect an order for a retrial.It is certainly arguable that if the Privy Council set aside the order of the Court of Appeal and restored the order of Cussen J the rights of the parties, so far as concerns the order for sale, would be finally determined, but, if on the other hand the Privy Council upheld the order of the Court of Appeal, the issues would have to be tried and other proceedings taken before a final adjudication between the parties were arrived at. An order for a retrial has always been treated as an interlocutory order, and I feel no doubt that an order which does not finally adjudicate the points in dispute unless the result of the re - hearing is in favour of the chargee, is an interlocu