038-NLR-NLR-V-13-GARNIER-v.-SUPPEN-KANGANY.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, June 2,1910and Mr. Justice van Langenberg-
GARNIER v. SUPPEN KANGANY.
D. C., Kalutara, 3,961.
Effect of repeal of a former written law—When retrospective—Arrest ofkangani—Ordinance No. 9 of 1909, s. 5, and Ordinance Wo. 21of 1901, s. 5 (3).
The provisions of section 5 of Ordinance Wo. 9 of 1909 are notretrospective. A kangani is liable to arrest in execution of a decreefor money obtained before October 1, 1909.
fjlHE facts are set out in the judgment of Hutchinson, C.J.
Vernon Grenier, for appellant.—The effect of the District Judge’sholding is to add a proviso to the plain words of section 5 ofOrdinance No. 9 of 1909. Where the intention of the Legislatureclearly appears, the Court will give an enactment a retrospectiveeffect in pursuance of such intention (Gardner v. Lucas-1). In Orchardt?. Carupai2 retrospective effect was given to this Ordinance, withrespect to prosecution for past offences, on the ground that it wasonly a matter of procedure that was involved. The same reasoning,it is submitted, applies to this case. It was after the Ordinancecame into operation that any right by virtue of which therespondent claims to arrest the appellant accrued.
No appearance for respondent.
Cur. adv. vult.
June 2, 1910. Hutchinson C.J.—
The plaintiff obtained a decree against the appellant on May 26.1909, for Rs„ 496.56 and costs. A writ of execution against theappellant’s property was issued on July 18, 1909, but nothing wasrecovered. Notice was served on the appellant in November, 1909,to appear and be examined as to what property he had* He did notappear, and a warrant was afterwards issued for his arrest, on whichhe was arrested. He objected to the validity of the arrest inreliance on section 5 of Ordinance No. 9 of 1909, but the Judge over-ruled the objection and made an order committing him to prison. Heappeals against the order. Section 5 of the Ordinance introduces anew section 19 into the Ordinance No- 13 of 1899 in these words:** From and after the commencement of this Ordinance no kanganishall be liable to arrest under the provisions of the Civil
1 {1878) 3 A. C. 601.
2 (1901) 2 Cur. L. R. 50.
( 1TO )June 2,1910 Procedure Code of 1889 in execution of a decree for money. ” TheHutchinson appellant is a kangani, the decree is a decree for money, and hi*C.J. counsel urges that the words of the new enactment are quite clear,Gamier v aQd exempt him from arrest. The Ordinance came into force onSup,pen October 1, 1909. It is, however, enacted by section 5 of OrdinanceKangany j^o. 21 of 1901 that ‘ ‘ whenever any written law repeals either in wholeor in part a former written law, such repeal shall not, in the absence'of any express provision to that effect, affect or be deemed to have
affectedany right acquired under the repealed law, or (c)
%ny action, proceeding, or thing pending or incompleted when therepealing written law comes into operation, but every such action,,proceeding, or thing may be carried on and completed as if therehad been no such repeal and the District Judge held that, inconsequence of that enactment, although the provisions of the CivilProcedure Code as to arrest were in part repealed, the presentproceeding must be carried on and completed as if there had beenno such repeal. The appellant’s counsel referred us to Orchard v.Garupai.' That case was decided on the general principles as to theretrospective effect of legislation where the Legislature has notinserted any express provision on the point. The Legislature hadenacted that prosecutions for certain offences must be commencedwithin 36 months after the date when the offence was alleged to havebeen committed, and the Court held that the enactment was retro-spective and barred a prosecution for one of those offences alleged,to have been committed before the enactment came into force, butmore than 36 months before the commencement of the prosecution.But here we have not to apply general principles, but to construetwo enactments: The plaintiff had, when the Ordinance of 1909came into force, “ a right ” under the partially repealed provisionsof the Civil Procedure Code to claim that his debtor should beimprisoned; and the action was “ incompleted ” when the Ordi-nance of 1909 came into force; therefore the right and the actionwere not affected by that Ordinance, “ in the absence of any expressprovision to that effect. ” Is there any such express provision?The appellant’s counsel asks what other meaning can we attach tothe words “ from and after the commencement of this Ordinance ”?It is not usual to insert them, because they are generally unneces-sary, for the natural presumption is that every section of an Ordinancecomes into force when the Ordinance comes into force, and we do notfind these words in section 3, which was the one which had to beinterpreted in Orchard v- Garupai.* But we find them in section 23of this same Ordinance, where they are, so far as I can see, meresurplusage. I am not at all convinced, therefore, that they arenot mere surplusage in section 19, or that they were intended to be“ an express provision ” such as is required in order to prevent theoperation of section 5 of Ordinance No. 21 of 1901.
1 (1910) 2- Cur. L. B. SO.
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Van Langenberg J—June 2,1910
On May 26, 1909, a decree was passed against the defendant Gamier v,ordering him to pay the plaintiff Es. 496.56, interest, and costs,and on January 20, 1910, writ against his person was issued, and hewas arrested and brought before the Court on February 14, 1910.
On the next day he showed cause against being imprisoned. Ordi-nance No. 9 of 1909 came into operation on October 1, 1909, and itwas urged that under section 5 of that Ordinance, which added a newsection 19 to Ordinance No. 13 of 1889, he was exempt from arrestFor the plaintiff it was contended that by reason of section 5 (3) ofOrdinance No. 21 of 1901 the plaintiff’s right to arrest the defendant,was not affected. The District Judge found against the defendent,and I think he is right. There can be no doubt that section 19referred to repeals in part, the provisions of the Civil Procedure Coderelating to the arrest of judgment-debtors, and section 5 (3) of Ordi-nance No. 21 of 1901 provides that such repeal shall not, in the absenceof any express provision to that effect, affect any action pendingat the time when the repealing law comes into force, but that everysuch action shall be carried on and completed as if there had been nosuch repeal. I am of opinion there is no “ express provision " asrequired by section 5 of Ordinance No. 21 of 1901, and I would,therefore, dismiss the appeal with costs-
Appeal dismissed.