Marikar V. Dharmapala Unnanse

1934 Present: Garvin S.P.J.

MARIKAR v. DHARMAPALA UNNANSE.

79-C. R. Ratnapura, 2249.

    Appeal-Order of Court of Requests committing a person obstructing a writ of possession-Final order-Courts Ordinance, No. 1 of 1889, s. 39. An order made by a Court of Requests under section 326 of the Civil Procedure Code committing to prison a person who had obstructed the execution of a writ of possession is an order having the effect of a final judgment from which an appeal lies to the Supreme Court.

APPEAL from an order of the Commissioner of Requests, Ratnapura, committing the fourth respondent to prison for obstruction alleged to have been caused by him to the execution of a writ of possession by the Fiscal.

H. N. G. Fernando, for plaintiff, respondent, raised a preliminary objection to the hearing of the appeal. On the day the order appealed from was made the appellant was not represented by a proctor nor was he present himself. Judgment was therefore entered for default of appearance. Section 823, sub-section (2), says that in Courts of Requests " no appeal shall lie against any judgment entered under this section for default of appearance ".

[GARVIN J.- If the order appealed against is not a final order, has the appellant a right of appeal in a Court of Requests case?]

The order appealed against is not a final order. In Arnolis Fernando v. Selestinu Fernando1[1 4  C. L. R. 70.] it was held that an order under section 326 of the Civil Procedure Code committing a person who is not a party to the original action to prison for obstruction was not a final order nor an order having the effect of a final judgment.

J. R. Jayewardene, for the appellant, was called upon to reply on the objection.

Section 823, sub-section (2), does not apply as this order was not made under that section. The section says, " no appeal shall lie .... against orders made under this section "; i.e., section 823. This order was not an order made for default of appearance but an order purporting to be made under section 326 for resistance to the execution of a proprietary decree.

It is submitted an appeal does lie from such an order. Section 39 of the Courts Ordinance gives the Supreme Court jurisdiction to correct " all errors in fact or in law which shall be committed by any Court of Requests in any final judgment or any order having the effect of a final judgment". Section 80 of the same Ordinance gives " a party dissatisfied with any final judgment, or any order having the effect of a final judgment", pronounced by a Court of Requests the right to appeal, except " where such right is expressly disallowed ".

Ordinance No. 12 of 1895, section 13 (1), refuses the right of appeal from " any final judgment, or any order having the effect of a final judgment", pronounced by the Commissioner of Requests, "in any action for debt,

damage or demand", unless upon a matter of law or with leave. This order would not come under that section. The only question therefore is whether the order appealed against was a final judgment or an order having the effect of a final judgment. The case cited Arnolis Fernando v. Selestinu Fernando (supra) takes too narrow a view of what is a final judgment.

In Vyraven Chetty v. Ukku Banda1[1 27 N. L. R. 60.] Jayewardene A.J. took a broader and a more correct view of what is a final judgment. He says, "a judgment or order which can be considered on appeal at a later stage of the proceedings, that is when the case is finally decided, does not fall within the term ' final judgment,' but an order which can never be so brought up in appeal is a final judgment". This order is not an incidental order but is final as against the party affected. See also Perera v. Novis Hamy2[2 29 N. L. R. 242.].

On the facts the appellant was hot a defendant in the action and the defendants themselves have been discharged. The inference is that the appellant was not acti

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