077-NLR-NLR-V-13-RAMAN-CHETTY-v.-WEERAPATIRAN-KANGANY.pdf
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[Poll Bench.]
OcL 18, 1910
Present: The Hon. Sir Joseph T. Hutchinson. Chief Justice,Mr. Justice Wood Benton, and Mr. Justice Grenier.
RAMAN CHETTY v. WEERAPATIRAN KANGANY.
D. C., Kurunegala, 3,841.
Action against kangany on promissory notes executed before OrdinanceNo. 9 of1909 cameintooperation — Judgmentobtained after
Ordinance came into operation—Kangany not liable to arrest.
Plaintiff sueddefendant, akangany.onFebruary 10, 1910,on
two promissorynotesdatedOctober22,1908, and January24,
1909, and obtained decree in March, 1910.
Held, thatthe defendantwasnot liable toarrestfor the debt.
(Per Hutchinson C.J. and Wood Renton J.) The plaintiff had*
at the timewhen Ordinance No. 9 of 1909cameinto operation,
" acquired" no11 right” toenforcehisdecree by imprisonment
within the meaning of section 5(3) (b) of Ordinance No. 21 of 1901.
(Per WoodBentonandGrenierJJ.) Apart altogether fromthe
provisions ofthat Ordinance(No.21 of 1901),section19 enacted by
Ordinance No. 9 of 1909 is retrospective.
Gamier v. Suppen Kangany1 over-ruled.
T
HE facts of this case are fully set out in .the Judgment of WoodBenton J.
Sampayo, K.C., for the appellant.—The notes sued upon weremade before the Ordinance No. 9 of 1909 came into operation; atthe date when the Ordinance came into operation the plaintiff hadacquired a right to recover his debt in the manner permitted by thelaw as it stooid at the time, of the making of the note. Section5 (3) of Ordinance No. 21 of 1901 enacts that in the absenceof .express provision to that effect, a repeal shall not affectany right acquired under the repealed law. It has been held inGamier v. Suppen Kangany1 that section 5 of Ordinance No. 9 of1909 does not contain any express provision giving that section aretrospective effect. The plaintiff in this case had, at the time the.new Ordinance came into operation, acquired a right to recover hisdebt from the defendant—if need be by getting him arrested.[Wood Benton J.—Can it be scud that a man has a vested rightto put another in jail ? Is not the arrest of a debtor merely aprocedure provided by law for recovery of the debt ?] No; it is
1 (1910) 13 N. L. B. 169.
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Oc*. 18,1910 not a question of procedure; it is a substantive right-. Counsel
referred to Maxwell on the Interpretations of Statute* (4th ed.)tpp. 321 and 327, and Orchard v. Gampai.1* No appearance for respondent.
SomanCheUy v.'Weera*patiranKangany
Gut, adv. tmZt.
October 18, 1910. Hutchinson C.J.—
On February 19, 1910, the plaintiff brought this action on twopromissory notes dated October 22, 1908, and January 24, 1909, an Ain March he obtained a decree for payment.. He issued a writ oiexecution, but his decree was not satisfied, mid he then applied forexecution by attachment and imprisonment of the debtor. TheCourt refused his application, and he appeals against the refusal.Section 5 of Ordinance No. 9 of 1909, which came into force onOctober 1, 1909, enacts .that: “ From and after the commencement
of this Ordinance no kanganyshall be liable to arrest under
the provisions of * The Civil Procedure Code, 1889, ’ in execution of adecree for money.** This section in effect repeals the provisions ofthe Civil Procedure Code as to arrest in execution of a decree formoney so far as kanganies are concerned, and this defendant is nkangany. But the Interpretation Ordinance, No. 21 of 1901, section5, enacts .that a repeal shall not, in the absence of any expressprovision to that effect, affect (amongst other things) any rightacquired under the repealed law, and the appellaufc contends thatthere is no such express provision in the Ordinance of 1909, andthat the plaintiff had acquired a right under the Civil ProcedureCode .to hate his debtor imprisoned. I have already expressed myopinion in Gamier t>. Suppen Kangany2 that the words “ From andafter the commencement of this Ordinance ” do not constitute anexpress provision to the effect mentioned in the InterpretationOrdinance. But I do not think that any right had been acquiredby the plaintiff before the Ordinance of 1909 came into force whichwas affected by that Ordinance. His only right was to have thedebt due to him paid, and to enforce payment in accordance withthe procedure in force at the time when he should apply to th .*Court. I would, therefore, dismiss the appeal.
Wood Benton J.—
This case, which has been referred to a Bench of three Judgesby my brothers Middleton and Grenier, raises an interesting andimportant question under “ The Indian Coolies’ Ordinance, 1909 ”(No. 9 of 1909). The plaintiff-appellant sues the defendant-respond-ent for the recovery of Rs. 1,561.98, interest, and costs due on twopromissory notes executed by the respondent, and dated respectivelyOctober 22. 1908, and January 24, 1909. The action, which wasby way of summary procedure under chapter LIIL of the Civil1 (1910) % Cur. L. R. 50.* (1910) 13 N. L. R. 169.
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Procedure Code, was instituted on February 19, 1910, and the Oot. 18,1910appellant obtained judgment as prayed for on March 8, 1910. On WoodMarch 14 the appellant applied for execution of the decree in his RsmtokJ.favour. Writ issued on April 4 against the respondent’s property, Eatrianbut nothing was recovered thereunder, and on May 9 the Fiscalmade his return to that effect. On the following day application patiranwas made on the appellant’s behalf ex parte for a warrant for the Kanyanyarrest of the respondent in execution of the decree. The DistrictJudge disallowed the application in these terms: “ Eefused. Estatelabourers are immune from arrest.” The present appeal is broughtagainst that order, and our decision will turn oh the constructionof section 5 of Ordinance No. 9 of 1909, adding to Ordinance No. 13of 1889 a number of new sections. We are here concerned with nprovision which is directed to be numbered section 19. It is in thefollowing terms:—"From and after the commencement of thisOrdinance no kanganv, subordinate kangany, or labourer shall beliable to arrest under the provisions of 1 The Civil Procedure Code.
1889.’ in execution of a decree for money.”
Ordinance No. 9 of 1909 came into operation on October 1 in thatyear. In the present case the action was riot instituted till afterthat date, namely, February 19, 1910, but one of the two notes onwhich the appellant sued was executed, and the case was arguedbefore us on the basis that the debts in respect of which both noteswere granted had been contracted before the new Ordinance cameinto operation. It was argued by Mr. Sampayo, on behalf of theappellant, that, inasmuch as the debts which formed the considera-tion for the promissory notes had been contracted under the oldlaw. he had at- the date when the new law came into force "acquired”a " right ” under the old law within the meaning of section !> (8) (b) of“ The Interpretation Ordinance, 1901 ” (No. 21 of 1901), to havehis judgment enforced by imprisonment, even although his actionon the promissory notes had been instituted, rind his decree hadbeen obtained, after the commencement of. the operation ofOrdinance No. 9 of 1909. I am not prepared to accede to thatcontention. The only “ right ” which the appellant ” acquiredby virtue of the respondent’s indebtedness to him was a right ofhaving payment of that debt enforced by whatever procedure thelaw for the time being recognized at the date of its enforcement.
I have been unable to find any direct authortiy upon the questionas to whether the right of enforcing a decree for the payment of adebt by a writ against the person of the debtor can be regardedas' anything but a part of the ordinary .machinery of the Courtsfor the. enforcement of rights which has been judicially declared tobe matter of procedure alone. There is one case, however;' whichthrows considerable light upon the point. I refer to Wright v.
Hale.1 That case turned on the question as to whether retrospective
1 {I860) 30 L. J. Ex. 40.
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Oct. 18,1910 effeot should be given to section 34 of the Common Law Procedure' Act, 1860 (28 and 24 Viet. C. 126), which enacted that when theRbncokJ. plaintiff in any action for an alleged wrong in any of the SuperiorRamanCourts recoversbythe verdict of ajuryless than£5, he shall
Chcttyv.not be entitledtoany costs in casetheJudge certifies that the
juuimtaction was not really brought to try a right, besides the mere right
Kangany to recover damages; that the trespass or damage complained ofwas not wilful or malicious; and that the action was not fit to bebrought. It was held by ,the Court of Exchequer that this enact-ment applied to actions tried after, although commenced before,the Act came into operation. Wilde B. expressed the ratio decidendias follows:“ What is the right the suitor has ? The right of action
is the right to bring the action; and what is the right to bring theaction ? Why, to have it conducted in the way and according tothe practice oftheCourt in which hebrings it; andif any Act of
Parliament, oranyrule founded ontheauthorityof an. Act of
Parliament, alters the mode of procedure, then he has a right tohave it conducted in that altered mode. That, therefore, takes awaynothing; the right of action does not involve the right to keep all theconsequences of that right as they were before. It gives him the rightto have the action conducted according to the rules that are thenin force with respect to procedure.” That statement of the law wasaccepted as correct by the House of Lords in the case of Attorney.General v. Sillem.1 It appears to me to govern the present case.
Mr. de Sampayo admitted that, in view of the English decisionson the point, he could not contest the proposition (see Orchard v.Garupai2) that the presumption against a retrospective constructionof statutes does not apply to statutes of limitations. But he contendedthat in the present case something more than a mere rule of procedureis in issue, and that the right to use such an effective weapon asimprisonment for the recovery of debts is of a substantive character.It will appear, however, on reference to the English decisions whichI have referred to above, and which are collected and discussed inthe case of Orchard v. Carupai,2 that it, was because the EnglishCourts held that the time within which a right of action or ofprosecution can be enforced is1 a matter of procedure only, and isquite different from the right of action or prosecution itself, thatthe rule in question as to statutes of limitations was laid down. Icannot myself see any difference in principle between those casesand the one before us, in so far as it turns on the point of law withwhich we have here to deal, and if it were necessary to dispose of iton that point alone, I should be prepared to hold that the presentappeal must be dismissed.
But, in view of the fact that there is no direct authority on thequestion, I do not think that we can avoid an expression of opinionon the further issue whether, even assuming that the right of the1 (1864) H. L. C. 704.2 (1910) 2 Cur. L. R. 60.
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appellant to enforce payment of his judgment debt by execution 0et‘ M, MMagainst the person of the debtor could be held to be a “ right woooacquired ” under the old law prior to the enactment of the new one, Renton i.it has not been taken away by “ express provision to that effect " Ramanwithin the meaning of section 5 (3) of Ordinance No. 21 of 1901.<y}%£/av‘
I need scarcely say that I desire to express my own opinion on this patiranquestion with the utmost diffidence, in view of the decision of the KanganySupreme Court on the point in Gamier v. Suppen Kangany.1 I feelbound to say that I think the language of the new section enaotedby Ordinance No. 9 of 1909 does give retrospective effect to theprohibition of imprisonment for debt which it -contains. Mr. deSampayo called our attention to the fact that the language used insection 5 (3) of Ordinance No. 21 of 1901 requires that the provisionby which the enactment is made retrospective should be “ express."
X do not think that section 5 (3) of the Ordinance of 1901 eitherwas intended to, or did, alter the general rule of the interpreta-tion of statutes theretofore existing, by which retrospective effectmight be given to an enactment either expressly or by necessaryimplication from the language used. It must be borne in mindthat the object of such enactments as Ordinance No. 21 of 1901 ismerely to obviate the necessity for the insertion of a saving clausein every enactment that is passed by the Legislature. In myopinion, the language of section 5 (3) does not enlarge the old canonsof statutory interpretation ap to ' the circumstances under whichretrospective effect should not be- given to any particular enactment.
The new section that we have here to deal with appears to me toprohibit the arrest of labourers on civil process absolutely fromand after the commencement of the Ordinance. It is obvious, ofcourse, that the mere use of the words ‘‘ from and after the com-mencement of this Ordinance ” is not conclusive on the point.
(See D. C., Matara, 26,376*). They occur at least in one othersection of Ordinance No. 9 of 1909, namely, section 23 (1), withthe construction of- which it is not necessary at the presentmoment to deal, and they do not occur in section 30, whichis, 1 think, clearly retrospective. At the same time the useof these words is a circumstance that has to be noted in theconstruction of the section, and taking them in conjunction withthe wide and peremptory terms of the rest of that section, they appearto me to amount to a provision that no kangany, subordinatekangany, or labourer shall be liable to arrest under the provisionsof “ The Civil Procedure Code, 1889," in execution of a decree, formoney, irrespective of the date of the decree, or, for that matter, ofthe date when the debt on which it was founded was contracted.
I record my own opinion on this point for what it is worth, and onlybecause I feel that the decision of the case ought not to be left to dependon the correctness of my interpretation of the words “ right acquired,"
»(1910) 13 N. L. R. 169.* (1S72) Qren. III. D. C. 55
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Oqt. 18, 1910
. WoodRknton J.
RamanChtUy 0.Weera-paiiranKangany
in the absence of any. direct judicial authority on the point, whenthere is another, and, as I venture to deem it, a stronger, groundon which the dismissal of the present appeal may be justified. Onboth of the grounds above stated, namely, (1) that the appellant had,at the time when Ordinance No. 9 of 1909 came into operation,
" acquired ” no “ right ” to enforce his decree by imprisonmentwithin the meaning of section 5 (3) (b) of Ordinance No. 21 of 1901,and (2) that, apart altogether from the provisions of that Ordinance,section 19 enacted by Ordinance No. 9 of 1909 is retrospective, Ibold that this appeal must be dismissed, and I agree with Grenier J.that it should be dismissed with the costs, if any, incurred by therespondent.
GnENIBR J.—
The facts material to. the decision of this appeal are not disputed,and the only question before us is whether or not a kangany isimmune from arrest by virtue of. the provisions of. section 5 ofOrdinance No. 9 of 1909. The words of • the section are asfollows: *’ From and after the commencement of this Ordinanceno kangany, subordinate kangany, or labourer shall be liable toarrest under the provisions of ‘ The Civil Procedure' Code, 1889,’ inexecution of a decree for money. " When the case was first arguedbefore my brother Middleton and myself, I thought that the sectionin question was clearly intended to have a retrospective effect in.view of the way in which it was worded, and the apparent objectwith which provision was made in favour of a certain class ofpeople protecting them from arrest under civil warrant. To mymind it seemed that the enactment was absolutely retrospectivein its terms, and that the Interpretation Ordinance, No. 21 of 1901,did not limit or in any way affect the scope of its operation. Onfurther consideration, although I have the misfortune to take adifferent view from that expressed in the case of Gamier v. SuppenKangany,1 I remain of the same opinion. I think there is expressprovision in the words of section 5 of Ordinance No. 9 of 1909prohibiting arrest and imprisonment for debt in the case of personsreferred to therein, and this being so it is unnecessary to discuss theeffect of the Interpretation Ordinance on the section. I woulddismiss the appeal with costs, if any.
Appeal dismissed.
1 (W0) 13 N. L. R* 169.