125-NLR-NLR-V-55-HAI-BAI-Appellant-and-P.-PERERA-Respondent.pdf
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Mai Bcti v. Perera
1954Present: Gratiaen J. and Sansoni J.HAI BAI, Appellant, and P PERERA, RespondentS. C. 22 (Inty.)—D. C. Kandy, M. 8. 3,480
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Public Servants (Liabilities) Ordinance (Cap. 88)—Sections 2 and 3—Amending-
Act No. 10 of 1951—Retroactive effect—Interpretation Ordinance (Cap. 2),6 (3) (b).
The Public Servants (Liabilities) Amendment Act, No. 10 of 1951,*does notoperate retroactively so as to extend its protection to a public servant in respectof a liability incurred by him prior to March 15, 1951 (the date when the amend-ment came into force).
Decree was entered in favour of the plaintiff on September 30, 1952, in an.action on two promissory notes dated November 19, 1949, and June 30, 1950,respectively. At the time defendant borrowed money on the promissory notes,he was a public servant receiving a monthly salary exceeding t^s. 300. Duringexecution proceedings he pleaded that, inasmuch as the Public Servants-(Liabilities) Ordinance, as amended on March 15, 1951, by Act No. 10 of 1951,protected public servants drawing a monthly salary of Rs. 520 or less, he was-entitled under section 3 to be discharged from the procee dings. i
i (1949) 52 N. L. R. 186; (1947) 48 N. L. R. 200; (1951) 53 N.. L. R. 469p(1940) 19 C. L. W. 129.,
6BAHAEN J.— Hai Bai v. Perera
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Held, that, by virtue of section 6 (3) (b) of the Interpretation Ordinance, theamending Act Ho. 10 of 1951 did not operate retroactively so as to extendto the del indent a statutory protection which he had not enjoyed at thetime when his liability was incurred under the promissory notes sued on.
/ PPTfl AT, from a judgment of the District Court, Kandy.
R. Gunaratne, for the plaintiff appellant.
No appearance for the defendant respondent.
R.S. Wanasundera, Crown Counsel, as amicus curiae.
Cur. adv. vutt.
May 27, 1954. Gratiaen J.—
The defendant has at all material times been a public servant in receiptof a monthly salary exceeding R-s. 300 but less than Rs. 520. On 19thNovember, 1949, and 30th June, 1950, respectively he incurred a liabilityto the plaintiff er two promissory notes, and was sued by the plaintiffon 17th January, 1952, for the recovery of the aggregate balance sumand interest due on the notes. A decree for this amount and costs wasentered against him on 30th September, 1952.
On 30th October, 1952, the learned District Judge allowed the plaintiff’sapplication for execution of the decree in his favour, but shortly thereafterthe defendant objected that all the proceedings in the action were voidbecause they contravened the provisions of the Public Servants (Liabilities)Ordinance (Cap. 88) as amended by the Public Servants (Liabilities)Amendment Act, No. 10 of 1951. The present appeal is from an orderof the learned judge upholding the objection and recalling the writ.
The question for our decision, shortly stated, is whether the amendingAct which passed into law on 15th March, 1951, operates retroactivelyso as to extend to the defendant a statutory protection which he hadadmittedly not enjoyed at the time when his liability was incurred undereither of the notes sued on. The learned judge, purporting to followthe ruling of this Court in Fernando v. Khan took the view that theamending Act does have retroactive operation except only in caseswhere an action to enforce the liability of a previously unprotectedpublic servant had been instituted before 15th March, 1951. In myopinion this is not the ratio decidendi of Khan’s case (supra).
Section 2 (1) of the principal Ordinance protected “ public servants ”from being sued in Courts of law upon certain classes of transactions,but section 2 (“£) expressly limited the scope of this immunity to thosewho were in receipt of a monthly salary of less than Rs. 300 at the timewhen the liability sought to be enforced was incurred. The defendantadmittedly did not belong to the protected income-group when he becameindebted to the plaintiff on the promissory notes sued on, and*the common
(1952) 54 H. L. R. 142.
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GRATIAEN J.—Sai Bai v. Per era
law right of the plaintiff to enforce the liability in civil proceedings wastherefore unaffected by the impact of the Ordinance. Ryleed, it was’expressly preserved by section 2 (2).,
So matters stood until 15th March, 1951, when the amending Actextended the protection of the principal Ordinance to “ public servants ”of a higher income-group to which the defendant admittedly belongedat all material times—namely, “ public servants ” whose" monthlysalary fell between Rs. 300 and Rs. 520.
The defendant was not represented in appeal, and, as our decisienmay well affect the rights and liabilities of other creditors and otherpublic servants, we requested the Attorney-General to be good enoughto arrange for Crown Counsel to appear before us as amicus curiae. Weare indebted to Mr. Wanasundera for the assistance he has given us.
The clear answer to the problem under consideration is to be foundin section 6 (3) (6) of the Interpretation Ordinance (Cap. 2). A repealingAct, unless it expressly so provides, does not affect “ any right acquired ”under the earlier law. The amending Act does not expressly, or evenby necessary implication, purport to destroy or reduce the rights whichthe creditors of previously unprotected public servants had acquiredon transactions entered into before 15th March, 1951. In the result,section 6 (3) (6) of the Interpretation Ordinance preserves the rights ofthe plaintiff against the defendant in respect of the promissory notessued on.
Fernando v. Khan (supra) was concerned only with a situation inwhich a creditor had, before 15th March, 1951, commenced an action toenforce the liability of a previously unprotected public servant whosubsequently claimed the protection of the amending Act. In sucha case, the rights of the plaintiff in the pending action were clearly pre-served by section 6 (3) (c) of the Interpretation Ordinance. But thejudgment must not be regarded as authority for the proposition that theprior institution of an action is a condition precedent to the preservationof a creditor’s right to enforce a liability incurred before the amendingAct passed into law. In the present case, it is section 6 (3) (b) of theInterpretation Ordinance which keeps the plaintiff’s rights alive, and thisCourt had no occasion in Khan’s case (supra) to consider a situationsuch as has now arisen.<■-
In my opinion, the judgment under appeal must be set aside. Theprevious order dated 13th October, 1952, allowing the plaintiff’s appli-cation for execution of his decree must be restored, and any seizureeffected in pursuance of that order must be declared valid. The plaintiffis entitled to the costs of this appeal and to the costs of the inquiry inthe Court below.
Sansohi J.-;-I agree.
Appeal allowed.