Mohamed Sheriff V. Muttu Natchia

1932 Present: Garvin S.P.J. and Drieberg and Akbar JJ.

MOHAMED SHERIFF v. MUTTU NATCHIA

170-D. C. (Inty.) Kalutara, 1,031.

Privy Council-Application for conditional leave-Judicial settlement-Order on executor to give list of mortgage bonds and other debts-Reasons for non-recovery of debts-Final order-Ordinance No. 31 of 1909, rule 1 (a).

In an application for judicial settlement by an executor the District Judge, after dealing with the case of one mortgage bond, ordered the executor to file a detailed list of the other bonds and debts of the estate, showing what steps he took and what amounts he recovered in each-case and the reason for non-recovery. The Supreme Court affirmed the order.

Held (in an application for leave to appeal to the Privy Council), that the order had the effect of a final judgment and that the executor was entitled to have leave to appeal.

APPLICATION for conditional leave to appeal to the Privy Council from an order made in the course of an application for judicial settlement by an executor.

Choksy, for executor, appellant (with him Canekeratne and Jayawickrama).-The judgment is final because it finally determines the executor's liability to pay the estate a certain sum. Any proceedings which may take place hereafter in the lower Court cannot reduce his liability to pay that certain sum.

Counsel cited Kurukal v. Kurukal 1[31 N.L.R. 165.] and Ceylon Tea Plantation Co. v. Carry 2[12 N. L. R. 367.].

H. V. Perera, for respondents.- There is no finality in respect of the matter which the Court had to adjudicate upon, though there is a final ascertainment of liability for an item over Rs. 5,000. Till there is a judicial settlement of the whole account the matter submitted; viz., an account, is not finally settled. A decision in order to be final must cover the whole area of the subject matter in dispute. " Finally " means finally disposing of the whole proceeding, affecting the whole area of litigation between the parties.

An order which determines only part of a case is not a final order (Baiy Nath Dass v. Sohan Bibi et al. 3[31 All. 545.]).

Finality is reached when decree is entered (section 740, Civil Procedure Code).

Counsel cited 138 D. C. Jaffna, 5,870 (S, C. M., March 19, 1931). and 128 D. C. Jaffna, 5,408 (S. C. M., May 39, 1931).

Choksy, in reply.-Section 744, Civil Procedure Code, gives a right of appeal from every order made under Chapter LV.

If judgment is "final" within the meaning of the Privy Council rules, then there is a right of appeal to the Privy Council.

As to the test whether a judgment is final or interlocutory, vide Bozon v. Atkingham Urban District Council 4[(1903) 1 K. B. 547.].

A judgment in appeal which finally determines the principal matter in dispute, even though further hearing is necessary in the Court below before the action can be finally disposed of, is a final order appealable to the Privy Council (Saiyid Muzhar Hasseim v. Mussamat Bhoda Bibi 1[77 All. 112.])

April 22, 1932. GARVIN S.P.J.-

This application for conditional leave to appeal to the Privy Council was first listed before my brother Maartensz and myself. After hearing argument we decided, in view of the difficulty of the question and its importance to the parties concerned, that the matter should be considered by a larger Bench.

The applicant is one of the executors of the last will of S. M. L. Wappusa Marikar, deceased. He appealed to this Court from an order made by the District Judge in a proceeding for the judicial settlement of certain accounts filed by him upon the orders of the Court. It was not the final account of his administration. Several issues were framed and all these were fully answered by the learned District Judge with the exception of the 5th issue which was as follows:-

Has the said executor fraudulently and negligently failed to recover mortgage bonds and other debts of the estate ?" In the cou

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