Sec. 86 (2) & 88 of the Civil Procedure - leave to appeal or final appeal - correct application is by way of final appeal

In Barbara Iranganie De Silva and others v. Hewa Waduge Indralatha, the Defendant Respondent made an application under Section 86(2) of the Civil Procedure Code seeking to purge the default. The Plaintiff Appellant objected and the matter was fixed for inquiry. At the end of the inquiry, the District Court delivered Order on 09.05.2014. dismissing the Application to purge the default made by the Defendant Respondent. 

The Defendant Respondent thereafter filed a “ notice of appeal “ against the said Order of the District Court dated 09.05.2014. She filed a Petition of Appeal (Final Appeal ) seeking to challenge the said Order. The Plaintiff Appellant submitted to the Civil Appellate High Court, whilst the Appeal was pending to be listed for hearing, by way of a Motion dated 06.02.2015 , seeking that the purported Final Appeal of the Defendant Respondent is liable to be rejected and dismissed in limine, having regard to the matters submitted by way of the said motion. The Plaintiff Appellant submitted to the Civil Appellate High Court, that the correct remedy in seeking to challenge an Order made pursuant to an Application made under Section 86(2) of the Civil Procedure Code was by way of an application for Leave to Appeal according to the Judgment of a Divisional Bench in Chettiar Vs Chettiar 2011, BLR 25 and hence, no Final Appeal will lie. The Plaintiff Appellant argued that in these circumstances, that the purported Final Appeal of the Defendant Respondent is liable to be rejected and dismissed in limine. 

The Civil Appellate High Court rejected that application and hence, this application to the Supreme Court. 

Following is the full judgment from,  http://www.supremecourt.lk/