Usoof V. Nadarajah Chettiar

1958 Present: H. N. G. Fernando, J., and Sinnetamby, J.

A. E. M. USOOF, Petitioner, and NADARAJAH CHETTIAR,
Respondent

S C. 490-Application for Conditional Leave to appeal to the Privy Council
in D. C. Colombo 3,140/MB.

    Privy Council-Application for restitutio in integrum-Order of Supreme Court- Right to appeal therefrom to Privy Council-" Final judgment in a civil suit or action "-Appeals (Privy Council) Ordinance (Cap. 85),s.3, Schedule, Rule 1.

An order of the Supreme Court granting or refusing an application for restitutio in integrum in respect of a decree alleged to have b en obtained by fraud is not a final judgment from which leave to appeal to the Privy Council can be claimed as of right under Rule 1 of the Schedule to the Appeals (Privy Council) Ordinance.

Dodwell v. Rawther (1899) 3 N. L. R. 325, not followed.

APPLICATION for conditional leave to appeal to the Privy Council.

C. Thiagalingam, Q.C., with C. Chellappah and T. Parathalingam, for the defendant-appellant petitioner.

E. B. Wikramanayake, Q.C., with V. Arulambalam, for the plaintiff-respondent.

Cur. adv. vult.

January 17,1958. H. N. G. FERNANDO, J.-

This is an application for conditional leave to appeal to Her Majesty in Council against an order of this Court dismissing an application by way of restitutio - in-integrum in which the present petitioner sought to have

vacated a decree entered of consent on 21st December 1953 in al No. 3,140 D. C. Colombo. In that action, which was for the recovery sums alleged to be due on a mortgage bond, the petitioner was the defendant and the respondent was the plaintiff. The ground of application for restitutio was that the present petitioner had consented to the terms of the consent decree (whereby judgment was entered for plaintiff subject to certain conditions as to execution) on the faith of an (unrecorded) undertaking by the plaintiff which the plaintiff had thereafter fraudulently refused or neglected to implement.

The only ground of objection to the application for conditional leave is that the former proceedings for restitutio are not a civil suit or action and that no appeal lies to the Privy Council from the judgment of this Court in those proceedings. Counsel for the petitioner appeared to think that if he succeeded in showing that an application for restitutio in the Supreme Court is a "civil suit or action," a right of appeal would necessarily lie against the order of this Court thereon. But section 3 of the Appeals (Privy Council) Ordinance (Cap. 85) does not itself confer a right of appeal; it merely provides that the right of appeal shall be subject to, inter alia, the limitations and restrictions prescribed by the 1st Rule in the Schedule to the Ordinance. In the case therefore of every application for leave to appeal, the provisions in that Rule are brought into consideration and the question of law which must always be determined is whether the relevant order of this Court is a final judgment in a civil suit or action. That in my opinion is the substantial question which has been raised in the objection taken by the respondent.

The principal argument for the respondent has been based on the decision of a majority of a bench of five Judges in the case of The Silverline Bus Company Limited v. Kandy Omnibus Company Limited 1[1 (1956) 58 N. L. R, 193.] to the effect that an application to this Court for a writ of certiorari is not a "civil suit or action" within the meaning of section 3 of the Appeals (Privy Council) Ordinance. Since the jurisdiction of the Supreme Court to grant relief by way of restitutio is of a different nature to the jurisdiction in certiorari, it is necessary to consider first the subject of restitutio before examining the bearing which the decision relied on may have on the present case.

The history of the remedy of restitutio-in-integrum was considered by Wood Renton, J. in Abeysekere v.

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