HAJI OMAR V. BODHIDASA

017-SLLR-SLLR-1994-V2-HAJI-OMAR-V.-BODHIDASA.pdf


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Hettiarachchi v. Hettiarachchi (G. P. S. de Silva. C.J.)
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HAJI OMAR
v.
BODHIDASA
SUPREME COURT.
FERNANDO, J.,
AMERASINGHE. J. ANDDHEERARATNE, J.
S.C. 48/93.
A. 1280/85.
C. COLOMBO 739 RE.
SEPTEMBER 27 AND OCTOBER 11, 1994.
Civil Procedure – Execution of decree for rent and ejectment – Civil ProcedureCode ss. 217, 337 – Amending Act, No. 53 of 1980 – Interpretation Ordinances. 6(3) – Procedural legislation – Retrospectivity – Existing Rights and VestedRights.
Ex parte decree for rent and ejectment was entered but owing to the death of thejudgment creditor and later of wife, the execution and delays caused inter alia byloss of the record and difficulties in tracing the defendant, nearly a quartercentury had lapsed. The substituted judgment creditors applied for execution.
Held:
Section 337 of the Civil Procedure Code which applied was amended by ActNo. 53 of 1980. The words ‘payment of money or delivery of other property' insection 337(1) before amendment should be read ejusdem as they are referableto items A (decree to pay money) and B (decree to deliver movable property) ofthe classification of decrees mentioned in section 217. Item C in the classification
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refers to decrees "to yield up possession of immovable property”. The word'delivery’ is appropriate to movable property.
At Ihe time he obtained judgment in his favour, the judgment – creditor was notinhibited by any period of time to apply for execution of a decree commandingthe judgment – debtor to yield up possession of immovable property.
Under the amended section 337(1) no application to execute a decree shall begranted after the expiration of ten years from the date of the decree subject tocertain exceptions.
The presumption of retrospectivity. could be legally attracted to an "existing right"as opposed to a 'vested right'. The general principle is that a statute is presumednot to operate retrospectively so as to affect a vested right. A statute is retrospectiveif it takes away or impairs a vested right acquired under existing laws, or creates anew obligation, or imposes a new duty, or attaches a new disability in regard toevents already past. There is however said to be an exception in case of a statutewhich is purely procedural because no person has a vested right in the rules for theconduct of an action for the time being prescribed. Again a statute which isretrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in relation to anotheraspect of the same case (e.g. because it applies only to the post-statutecommencement of proceedings to enforce that cause of action).
The Amendment Act No. 53 of 1980 cannot be regarded as purely procedurallegislation insofar as it purports to affect (or rather to destroy) the vested right ofthe judgment-creditor. The amendment is not restrospective.
The decree entered in favour of the judgment-debtor is divisible. As far as thatpart of the decree to yield up possession of immovable property is concerned,the substituted plaintiffs are entitled to obtain its execution forthwith. As regardsthe other part of the decree, for payment of money, the original section 337(1) (asit does after the amendment) inhibited granting a subsequent application for writafter expiration of ten years from the date of the decree. Relief will not be grantedto the substituted plaintiffs by way of damages for the failure on the part of thejudgment-debtor to yield up possession and execution of this part of the decreewill not be granted.
Per Dheeraratne J:
“It appears to me where there was a period of time within which a judgment-creditorwas permitted to apply for writ of execution and within the unexpined time amendinglegislation abridged that period, yet leaving time for a judgment-creditor to apply forwrit of execution, such legislation would in al probability be termed procedural and
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the judgment-creditor would have to proceed in terms of the amending legislation toprosecute his relief on the principle that he had no vested right in the rules ofconduct of the action for the time being prescribed, But where there was a time limitor no time limit to apply for execution, and amending legislation abridged or limitedthat time so as to deprive or destroy the judgment-creditor’s right of enforcementsuch amending legislation could hardly be called procedural as it would affect asubstantive right and the presumption of retrospectivity normally attached toprocedural legislation will have no application. The right affected in the present caseis a vested right inasmuch as it is free from contingencies; it is not a mere hopecontingent on the happening of some other event."
Quaere: Whether the judgment-creditor's right was an acquired right underthe repealed law within the meaning of section 6{3) (b) of theInterpretation Ordinance.
Cases referred to:
Charles Singho v. Jinadasa Appuhamy (1960) LV 111 C LW 83.
Martin Silva v. Mahasoon (1967) 70 NLR 06.
Abeysinghe v. Gunasekera (1962) 64 NLR 427.
Ponnamma v. Arumugam (1905) 8 NLR 223.
Salt v. Cooper (1880) 16 Ch. Div. 554..
Saravanamuttu v. Solamuttu (1924) 26 NLR 385.
Suppramaniam Chettiar v. Ward (1956) 58 NLR 140, 144.
Blyth v. Blyth (1966) AC 643,666.
Ran Banda v. River Valleys Development Board (1967) 71 NLR 24,28.
Re Edmondsonls Estate (1868) LR 5 Eq. 389, 396-7.
West v. Gwynne 1911 – Ch. 1,12.
Yew Bon Tew v. Kenderaan Bas Mara (Privy Council) (1982) 3 AER 833.APPEAL from judgment of the Court of Appeal.
L de Silva P.C. with D. M. Alahakoon for defendant-appellant.
P. A. D- Samarasekera P.C. with R. Manikkavasagam for substituted plaintiff-respondents.
Cur. adv. vult.
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December 06, 1994.
DHEERARATNE, J.
FactsThis appeal relates to an application for execution of a decreemade on 22.6,84 by the substituted plaintiff-respondents against thedefendant-appellant for recovery of premises called the ground floorsection ‘A’ of premises bearing assessment No. 214, BandaranayakeMawatha, Colombo, together with damages from 1.12.66 to 31,10.85amounting to a sum of Rs. 2,27,000. These proceedings have achequered history spanning about a quarter of a century, a variety ofcauses having contributed to their prolongation. Ex parte decreewas entered against the defendant for ejectment and damages on
and on 13.1.69 the original plaintiff, who was at that timeabout 75 years of age, applied for execution of the decree. No stepswere taken pursuant to that application as the original plaintiff wasailing; he died on 2.8.70, Testamentary proceedings No. 44 T wereinstituted in respect of his estate and his widow was appointedexecutrix. She too died on 9.5.72. Her last will was admitted toprobate and the substituted plaintiffs were appointed executors ofher estate. The substituted plaintiffs were then appointed in theseproceedings in place of the original plaintiff after an inquiry intoobjections taken by the defendant against such substitution. On2.4.81 the substituted plaintiffs applied for issue of writ. Upon certainobjections taken by the defendant, the application for issue of writwas dismissed granting the substituted plaintiffs liberty to make afresh application. The record of this case was then missing from theDistrict Court and it had to be reconstructed with the aid ofdocuments in the possession of the substituted plaintiffs’ lawyer.Considerable time appears to have been lost thereafter too by theunavailability of the defendant to serve notice as he was said to haveleft to Pakistan. Ultimately, when it was discovered that thedefendant’s son held the defendant’s power of attorney, notice wasserved on him and that too by way of substituted service after severalunsuccessful attempts. The present application for execution of thewrit was made on 22.6.84 and after consideration of the objectionsraised by the defendant, the District Court made order on 21.10.85allowing the application for writ of execution. The defendant
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appealed from that order but the Court of Appeal dismissed theappeal; the present appeal by the defendant is the sequel.
The law relating to applications for execution of writsBefore the Civil Procedure (Amendment) Act No. 53 of 1980 cameinto operation on 11.12.1980, section 337 of the principal enactmentread as follows:
Where an application to execute a decree for the payment ofmoney or delivery of other property has been made under thischapter and granted, no subsequent application to execute the samedecree shall be granted unless the court is satisfied that on the lastpreceding application due diligence was used to procure completesatisfaction of the decree, or that execution was stayed by thedecree-holder at the request of the judgment-debtor. Also no suchsubsequent application shall be granted after the expiration of tenyears from any of the following dates, namely –
the date of the decree sought to be enforced, or of thedecree, if any, on appeal affirming the same; or
where the decree or any subsequent order directs the paymentof money or the delivery of property to be made at a specified date -the date of the default in making the payment or delivering the propertyin respect of which the applicant seeks to enforce the decree.
Nothing in this section shall prevent the court from grantingan application for execution of a decree after the expiration of thesaid term of ten years, where the judgment – debtor has by fraud orforce prevented the execution of the decree at sometime within tenyears immediately before the date of the application.
The above section as amended by Act No. 53 of 1980 reads asfollows:- 1
(1) No application (whether it be the first or a subsequentapplication) to execute a decree, not being a decree granting aninjunction , shall be granted after the expiration of ten years from –
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[except for a minor change the rest of the subsection (1) reads asbefore; subsection (2) remains unamended; and a further subsectionwas added]
Subject to the provision contained in subsection (2) a writ ofexecution, if unexecuted, shall remain in force for one year only fromits issue, but-
such writ may at any time before its expiration, be renewedby the judgment-creditor for one year from the date of such renewaland so on from time to time; or
a fresh writ may at any time after the expiration of an earlierwrit be issued, till satisfaction of the decree is obtained.
Interpretation of the original section 337(1)Our attention was invited to the case of Charles Singho v.Jinadasa Appuhamy "’(Basnayake CJ. with Sansoni J. agreeing)wherein it was held that in the context of section 337, the words otherproperty mean other property ejusdem generis with money andtherefore, mean other movable property; section 337 therefore doesnot apply to a decree commanding any person to yield uppossession of immovable property. Although at first blush weentertained some doubts regarding the correctness of thatinterpretation, a closer examination of the context in which therepealed section 337 appeared in the Civil Procedure Code,dispelled our doubts. Chapter XXII of the Code is titled “OFEXECUTION" and contains sections 217 to 354. Section 217classifies the nature of decrees the court may enter, namely decrees-
to pay money;
to deliver movable property;
to yield up possession of immovable property;
to grant, convey, or otherwise pass from himself any right to,or interest in, any property;
to do any act not falling under the foregoing heads;
not to do a specified act, or to abstain from specifiedconduct or behaviour;
which declare a right or status.
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Section 217 further adds that the method or procedure to be followedin order to enforce satisfaction or execution of decree by thejudgment – creditor against the judgment-debtor, is that which is nextspecified “according to the above distinguishing heads”. Sections217 to 335 are grouped under those same heads. Under the head“(A) Execution of decree to pay money” appear sections 218 to 319;under the head "(B) Decrees for delivery of movable property"appear sections 320 to 322; under the head “(C) Decrees forpossession of immovable property" appear sections 323 to 330;under the head “(D) Decree for execution of conveyance or transferof property" appear sections 331 to 333(A); and under the head “(E)& (F) Mandatory and restraining decrees" appear sections 334 to335. Then comes the head “General Provisions" under whichsections 336 to 354 appear. In the context of this legislativeframework I find ample justification for the conclusion Basnayake CJ.reached that the words “payment of money or delivery of otherproperty” should be read ejusdem generis as they are referable toitems A and B of the classification of decrees mentioned in section217. It is significant to observe that item ‘C1 in that classification refersto a decree "to yield up possession of immovable property." The word“delivery" is thus appropriate to movable property.
In view of this aspect of the matter, it is right to conclude that at thetime he obtained judgment in his favour, the judgment-creditor wasnot inhibited by any period of time to apply for execution of a decreecommanding the judgment-debtor to yield up possession ofimmovable property.
Application of Amendment Act No. 53 of 1980Learned counsel for the substituted plaintiffs contended that if theprovisions of amendment Act No. 53 of 1980 are applicable to thepresent application, in terms of subsection 3 of section 337, a writ ofexecution may be issued at any time until satisfaction of decree isobtained and therefore there is no time constraint for suchapplication. This submission commended itself to the Court ofAppeal. I am unable to justify such an interpretation because theamended section 337(1) states that no application to execute adecree shall be granted after the expiration of ten years from the dateof the decree, and it is clear that what is stated in subsection (3) mustbe read subject to that general provision contained in subsection (1)as regards the time frame. Besides, the opening words of subsection(3) "subject to the provisions contained in subsection (2)” would itself
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attract the limitation of ten years specified in that subsection. But, thepivotal question, it seems to me, is whether the amended section 337applies at alt to the present application in view of section 6(3) of theInterpretation Ordinance.
Section 6(3) of the Interpretation OrdinanceSection 6(3) reads as follows:-
Whenever any written law repeals either in whole or part a formerwritten law, such repeal shall not, in the absence of any expressprovision to that effect, affect or deemed to have affected –
fa) the past operation of anything duly done or suffered underthe repealed taw;
any offence committed, any right, liberty, or penalty acquiredor incurred under the repealed law;
any action, proceeding, or thing pending or incompletedwhen the repealing written law comes into operation, but every suchaction, proceeding, or thing may be carried on and completed as ifthere had been no such repeal.
The amending Act No. 53 of 1980 contains no express provisionregarding pending actions. It is contended on behalf of thesubstituted plaintiffs that within the meaning of subsection 6(3) (c) theaction against the defendant was still pending or incomplete whenthe amending Act No. 53 of 1980 came into operation inasmuch asthe decree in favour of the judgment creditor had still to be satisfied.This position is tenable and amply supported by decided authorities.See Martin Silva v. Mahasoon <2); Abeysinghe v. Gunesekera <3),Ponnamma v. Arumugam (4); Sait v. Cooper<S); Saravanamuttu v.SolamuttuSuppramaniam Chettiar v. Wahid™.
Is amended section 337 of the CPC procedural and thereforepresumed to be retrospective in operation?The decision of this case would have rested there if not for theformidable argument advanced by learned counsel for the appellantregarding inapplicability of the provisions of section 6(3) (c) of theInterpretation Ordinance. It was contended that it is a well
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established rule of interpretation that changes in procedure haveretrospective effect in the absence of provisions to the contrary.(Maxwell on Interpretation of Statutes 7th edition 222; Craies onStatute Law 7th edition 401). As stated by Lord Denning in the caseof Blyth v. Blyth(S1.
“The rule that an Act of Parliament is not given retrospective effectonly applies to statutes which affect vested rights. It does not applyto statutes which only alter the form of procedure, or the admissibilityof evidence, or the effect which the courts give to evidence."
This leads to an investigation as to whether the amendment tosection 337 is procedural as contended on behalf of the appellant. Inthe case of Ran Banda v. River Valleys Development Board (#Weeramantry, J. observed "there is no general principle whichaffords a test for deciding whether a given rule belongs to the realmof substantive law or to the realm of procedure, but it is important tolook to substance and real effect rather than to form in determiningthe question. The fact that a rule appears in form to be proceduraldoes not necessarily make it so, for what may be procedural inappearance may well be substantive in effect. Thus Salmond(Jurisprudence 12th Ed. p462) observes that although the distinctionbetween substantive law and procedure is sharply drawn in theory,there are many rules of procedure which, in practical operation, arewholly or substantially equivalent to rules of substantive law. Rulesrelating to limitation are among categories cited by the sameauthority as being wholly or substantially equivalent to rules ofsubstantive law".
What is the substance and real effect of the amendment to section337 as far as it affects the action fifed by the judgment-creditor? Theobject of an action is the redress of a wrong, (see section 5 of theCPC for definitions of "action" and "cause of action"). The judgment-creditor was not circumscribed by any temporal limitation to apply forexecution of the decree but, the amending law, if applicable, imposesa time limitation reducing the decree obtained by him to an emptyshell; he is totally denied the fruits of his successful litigation.
Presumption of retrospectivity could be legally attracted to an“existing right" as opposed to a "vested right". The general principleis that a statute is presumed not to operate retrospectively so as toaffect a vested right and that a Court would always lean in favour ofthe interpretation which leaves a vested right unaffected. On this
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distinction between an existing right and a vested right, in BanBanda v. River Valleys Development Board (supra) Weeramantry J.expressed himself as follows:
■ The word 'vested' would appear to have a legal meaning which isunderstood as being 'free from all contingencies' (Re Edmondson'sEstate (,0,) and the distinction between such right and existing righthas been well explained by Buckley LJ. in West v. Gwynne inthese terms. "Suppose that by contract between A and B there is anevent to arise a debt from B to A and suppose that an Act providesthat in respect of such a contract no debt shall arise. As anillustration take the case of a contract to pay money upon the eventof a wager or the case of an insurance against a risk which an Actsubsequently declares to be one in respect of which the assuredshall not have an insurable interest. In such a case, if that event hashappened before the Act was passed, so that at the moment whenthe Act comes into operation a debt exists, an investigation whetherthe transaction is struck at by the Act involves an investigationwhether the Act is retrospective… but if at the date of the passing ofthe Act the event has not happened, then the operation of the Act inforbidding the subsequent coming into existence of a debt is not aretrospective operation, but is an interference with existing rights inthat it destroys A's rights in an event to become creditor of B. It washeld that there was nothing in the language of the new enactmentexcluding from its scope contracts entered prior to its date ofoperation. The rights affected were merely existing rights and therewas no presumption against interference with existing rights."
A useful discussion of this aspect of the matter in relation to acause of action is found in the more recent case of Yew Bon Tew v.Kenderaan Bas Mara<1*. Lord Brightman observed at page 836
"Apart from the provisions of the interpretation of statutes, there isat common law a prima facie rule of construction that a statuteshould not be interpreted retrospectively so as to impair an existingright or obligation unless that result is unavoidable on the languageused. A statute is retrospective if it takes away or impairs a vestedright acquired under existing laws, or creates a new obligation, orimposes a new duty, or attaches a new disability, in regard to eventsalready past. There is however said to be an exception in case of astatute which is purely procedural, because no person has a vestedright in the rules for the conduct of an action for the time beingprescribed.
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But these expressions ‘retrospective’ and 'procedural', thoughuseful in a particular context, are equivocal and therefore can bemisleading. A statute which is retrospective in relation to one aspectof a case (e.g. because it applies to a pre-statute cause of action)may at the same time be prospective in relation to another aspect ofthe same case (e.g. because it applies only to the post-statutecommencement of proceedings to enforce that cause of action); andan Act which is procedural in one sense may in particularcircumstances do far more than regulate the course ofproceedings, because it may, on one interpretation, revive ordestroy the cause of action itself, (emphasis added)
It appears to me that where there was a period of time within whicha judgment-creditor was permitted to apply for writ of execution andwithin the unexpired time amending legislation abridged that period,yet leaving time for a judgment-creditor to apply for wit of execution,such legislation would in all probability be termed procedural and thejudgment-creditor would have to proceed in terms of the amendinglegislation to prosecute his relief on the principle that he had notvested right in the rules of conduct of the action for the time beingprescribed. But where there was a time limit or no time limit to applyfor execution, and amending legislation abridged or limited that timeso as to deprive or destroy the judgment-creditor’s right ofenforcement such amending legislation could hardly be calledprocedural as it would affect a substantive right and the presumptionof retrospectivity normally attached to procedural legislation will haveno application. The right affected in the present case is a vested rightinasmuch as it is free from contingencies; it is not a mere hopecontingent on the happening of some other event. I
I feel fortified in the view I have taken by the judgment of T. S.Fernando, J. in Suppramaniam Chettiar v. Wahid (supra) whereconsideration of an analogous situation arose. It was held in thatcase that the amendment of section 218(m) of the CPC, by Act No.20 of 1954 exempting from seizure in execution of a decree to paymoney, the salary and allowances of an employee in a shop or office,if such salary and allowances do not exceed Rs. 500 per mensem,does not have any retrospective operation so as to deprive ajudgment-creditor, who had obtained a decree in his favour before
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the date on which the amending Act came into force {viz. 17th March1954) of his right to seize the salary and allowances payable to hisjudgment-debtor even after the date of the amendment. At page 144
T.S. Fernando, J. said
"A decree might for all practical purposes be an empty decree if allthat it permits its holder to do is to seize such sums of money as are inexistence at the date of entering the decree. It cannot be doubted thatat the date on which the decree in the present case was entered viz.21st May 1953, the judgment – creditor had a right to seize all sums ofmoney falling due even after the date of decree until the decree in hisfavour was satisfied. Such a right is truly a vested right What isthere in the Amendment Act of 1954 to compel one to concludethat the legislature intended to take away that vested right?"(emphasis added)
For the foregoing reasons, I hold that the Amendment Act No. 53of 1980 cannot be regarded as purely procedural legislation insofaras it purports to affect (or rather to destroy) the vested right of thejudgment-creditor. The contention of learned counsel for theappellant that the amendment is retrospective fails. In view of thisconclusion I have reached, consideration of the further question as towhether the judgment-creditor's right was an ‘acquired right underthe repealed law" within the meaning of section 6{3)(b) of theInterpretation Ordinance does not arise.
ConclusionThe decree entered in favour of the judgment-creditor is divisible.As far as that part of the decree to yield up possession of immovableproperty is concerned, I hold that the substituted plaintiffs are entitledto obtain its execution forthwith. As regards the other part of thedecree, for payment of money, the original section 337(1) (as it doesafter the amendment) inhibited granting a subsequent application forwrit after expiration of ten years from the date of the decree. Ourattention was not drawn to any basis upon which we could grant reliefto the substituted plaintiffs by way of damages for the failure on thepart of the judgment-debtor to yield up possession. The substituted
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plaintiffs will therefore not be entitled to obtain execution of that partof the decree. However, the substituted plaintiffs will be entitled torecover costs in connection with the writ application in the DistrictCourt, costs in the Court of Appeal, and costs of this court fixed atRs. 10,000. Subject to what is stated above the appeal is dismissed.
FERNANDO, J. -1 agree.
AMERASINGHE, J. -1 agree.
Writ of execution of the part of the decree for yield up possesston ofthe immovable property allowed.
Writ of execution of the part of the decree for payment of money anddamages refused.