040-NLR-NLR-V-58-SUPPRAMANIAM-CHETTIAR-Appellant-and-M.-A.-WAHID-Respondent.pdf
1956Present: T. S. Fernando, J.
SUPPPA MAX JAM CHETTIAR, Appellant, and M. A.WAHID, Respondent
S. C'. 11—C. E. Colombo, -13,S69
Execution of decree to pay money—Judgment debtor an employee in a shop or office
Liability of his salary and allowances to be seized in execution—Civil ProcedureCode, s. 21S (m)—Amending Act, Ko. 20 of 1054, has no retrospective effect—Interpretation Ordinance (Cap. 2), s. 6 (3) (b and c).-
The amendment of seel ion 2 IS (m) of the Civil Procedure Code by Act Xo. 2<>of 1954 exempting from .seizure in execution of a decree to pay money the salaryand allowances of on employee in a shop or office, if such salary and allowanees-
do not exceed Rs. SO0 per mensem, does not have any retrospective operationso as to deprivo o judgment-creditor, who had obtained a decree in his favourbeforo tho date on which the amending Act camo into force (viz., 3farch 17,1934), of hii right to seize the salary and allowances payable to his judgment-debtor even after tho dato of the amendment.
J^-PPEAR from an orrler of the Court of Requests, .Colombo.
Jtanganafhan, with S. C. Grosseite-Thambiah, for the plaintiff-appellant.
No ap2>earance for the 2nd defendant-respondent.
Cur. ado. vuti.
September 24, J 950. T. S. Febxaxdo, J.—
The amendment of section 218 of the Civil Procedure Code effected bythe Amendment Act, No. 20 of 1954, exempted from seiztiro in executionof a decree to pay money the salary and allowances of an employee in ashop or office, if such salary and allowances do not exceed five hundredrupees per mensem. This appeal raises the interesting question of lawwhether this amendment lias retrospective operation so as to deprive ajudgment creditor who has obtained a decree in his favour before the dateon which the Amendment Act came into force of the right he had ofseizing the salary and allowances of his judgment-debtor.
In order to discuss this question of law it is necessary first to state therelevant facts. Tho plaintiff filed this action on 13th ^February, 1953,against the 1st defendant and the 2nd defendant (who is the respondentto this appeal), and on 21st May 1953 judgment was entered againstboth defendants whereby they were ordered to pay jointly and severallyto the plaintiff a sum of Rs. 145/62, with interest on Rs. 135 at IS per cent,per annum from date of action up to date of decree and thereafter withlegal interest on the aggregate amount until payment in full. It wasfurther ordered that the amount of the decree was payable by the defend-ants by monthly instalments of Rs. 12/50, payable on the 5t.h day of eachmonth commencing from 5th June 1953. In default of the due paymentof a single instalment writ was to issue on the balance then due on thedecree. It is admitted that the defendants paid the instalments due inJune and July, 1953, and that default was made in the payment of subse-quent instalments. The plaintiff applied for writ against the defendantson 24th March 1954, and in execution of that writ the fiscal seized a sumof Rs. 37/69 in the hands of the 2nd defendant’s employer, the AssociatedNewspapers of Ceylon, Ltd., which sum represented the payment due tothe 2nd defendant for working overtime in the month of June 1954.After the seizure had been effected the 2nd defendant moved the Court ofRequests for a release of the seizure on the ground that the AmendmentAct No. 20 of 1954 exempted this sum from seizure. It was admitted thatthe 2nd defendant’s salary and allowances for a month do not exceedRs. 500, that he was employed in an office within the meaning of the Actand that the payment for working overtime ■would come within the
meaning of “salary and allowances1’ in section 21S, bnt the plaintiffresisted the motion for the release of the seizure claiming that the rightto seize' the 2nd defendant’s salary and allowances had accrued to himbefore 17th March 195-1 (the date on which the Amendment Act cameinto force), and that such right was not taken away by the Act.
The learned Commissioner of Requests held that at the date on whichthe Amendment Ac t came into force (viz.. 17th March 1954) no right hadbeen acquired by the plaintiff to seize any payment by way of salary orallowance which had not fallen due by that dale and, as the sum ofIts. 37/09 represented overt ime payment in respect of June 1954, he heldthat the seizure had to be released. 1 am unable to agree with the viewtaken by the learned Commissioner as the right that had been acquired byor acenied to the plaintiff by 17th March 1954 was not- merely a right toseize some particular property that had, so to speak, come into existence(in this case the sum of 11s. 37/69) but also the right to do something, i.e.,the right to seize ail salary and allowances. If it was the intention of thelegislature to deprive judginent-c-rcditors of rights they had acquiredbefore the Amendment Act came into force, that intention should havebeen clearly expressed in the statute or should be one which could begathered by necessary implication from the wording of the statute. Thepresumption that the legislature intends a statute to be prospective onlyhas not been rebutted…
The rule of construction cited in Maxwell on the Interpretation ofStatutes (10th edition), at page 221 in the following form :—■
“ In general, when the law is altered during the pendency of anaction, the rights of the parties are decided according to the law as itexisted when the action was begun, unless the new statute shows aclear intention to vary such rights.’’
is applicable in this country as well—see the case of Guneratne v. Appu-hami1—and is recognized in our law by section 6 (3) (b) of theInterpretation Ordinance (Cap. 2) which enacts that whenever anywritten law repeals either in whole or in part a former written law, suchrepeal shall not, in the absence of any express provision to that effect,affect or be deemed to have affected any right acquired under the repealedwritten law. JJy virtue of the decree in this ease on 21sfc May 19-53before the Amendment Act came into force a right had accrued to orbecome vested in the plaint iff to seize the salary and allowances of thedefendant. The salary and allowances capable of being so seized were notlimited to salary and allowances which had fallen due for payment- by thedate of decree and remaining unpaid, but extended also to salar}' andallowances payable even after the date of the decree. An examination ofrelevant authorities, both English and local, compels me to reach theconclusion that the plaintiff’s claim to seize the sum in question was notaffected bj' the Amendment Act in any way.
In the case of Knight v. Lee the defendant employed the plaintiff, abetting agent, to make certain bets in his (the plaintiff’s) name on thedefendant’s behalf. The bets having been made and lost, the plaintiff
1 (looo) o L. it. nr.
= (1S03) L. It. 1 Q. B. D. 41.
r(19-51) So A. L. R. 4-12.
paid the amount of the losses on the defendant's account. This occurredprior to the passing of the Gaining Act, 1S92. After the passing of theAct,"the plaintiff commenced an action to recover from the defendant themonev so paid. The defendant pleaded the Act as a bar to the action.Section 1 of the Act which was the i*elevant provision provided that “ anypromise, express or implied, to pay any person any sum of money paid byhim under or in respect of any contract or agreement rendered null andvoid by the Act of S and 9 Viet. C. 109…. shall be null and void,
and no action shall be brought or maintained to recover any such sum ofmoney ”. Mathew J. in the course of holding that the 1S92 Act was notretrospective and that the action might be maintained stated that “theimplied promise by the defendant to repay to the plaintiff the sum paidby him on the defendant’s account was a perfectly valid promise at thedate when it was made, and the presumption is that the legislature didnot by subsequent legislation intend to deprive the plaintiff of his rightunder that promise ”.
In the later ease of Ilensludt v. Porter .Mc-Cardie J. called upon toconsider the question whether section I of the Gaining Act of 1922 whichenacted that no action under section 2 of the Gaming Act of 1S35 torecover back money paid in respect of gaining debts “ shall be entertainedin any court ”, held that as the plaintiff's cause of action had vested inhim before the Gaming Act of 1922 had conic into force he was notprevented from commencing the action after the Act came into force andwas entitled to recover from the defendant. Dealing with an argumentthat the debt owed by the defendant gave rise only to a right to recoverand that such a right was not “ property ”, the learned judge stated asfollows at page 197 :—
“ Take the broad facts here. On July 20, J 922, the plaintiff possessedfully accrued rights under the Act of 1S35. The defendant then owedhim statutory debts. These debts constituted property in the fullestsense of the word. Can it be justly said that on July 20, 1922, thatproperty was wholly destroyed by an ambiguously worded Act ofParliament ? In my opinion the answer is No.”
The ratio decidendi of the case of Ilai Bai v. Per era – which was concernedwith the effect which an Act amending the Public Servants (Liabilities)Ordinance had on the rights enjoyed by judgment creditors appears tome to be equally applicable to the case now before me. In that casedecree had been entered in favour of the plaintiff on September 30, 1952,in an action on two promissory notes. At the time the defendant borrowedmoney on the promissory notes he was a public servant receiving a monthlysalary exceeding Rs. 300 and therefore outside the protection of the PublicServants (Liabilities) Ordinance (Cap. SS). During execution proceedingshe pleaded that-, inasnnich as the Public Servants (Liabilities) Ordinance,as amended by the Amendment Act, No. 10 of 1951 (which came intoforce on March 15, 1951), protected public servants drawing a monthlysalary of Rs. 520 or less, lie was entitled to be protected from proceedingsin execution of the decree. Gratiacn J. in holding against this plea stated
that the amending Act does not expressly, or even by necessary impli-cation, purport to destroy or reduce the rights which the creditors ofpreviously unprotected public servants had acquired or transactionsentered into before loth March 1951, and that, in the result, section 6 (3)(b) of the Interpretation Ordinance preserves the rights of the plaintiffagainst the defendant in respect of tho promissory notes sued on.
A decree might for all practical purposes be an empty decree if all thatit permits its holder to do is to seize such sums of monej' as are in existenceat the date of the entering of the decree. It cannot be doubted that atthe date on which the decree in tho present case was entered, viz., 21stMay 1953, the judgment-creditor had a right to seize all sums of moneyfalling due even after the date of decree until the decree in his favour wassatisfied. Such a right is truly a vested right. What is there in theAmendment Act of 1954 to compel one to conclude that the legislatureintended to take away that veste.d right ? I should refer in this connec-tion to the effect of another provision of the Interpretation Ordinance,namely section 6 (3) (c), which provides that a repeal of a written lawshall not, in the absence of any express provision to that effect, affect orbe deemed to have affected any action, proceeding or thing pending orincompleted when the repealing written law comes into operation, butevery such action, proceeding or thing may be carried on and completedas if there had been no such repeal. The action which the plaintiff insti-tuted'and which had reached the stage of the entering of the decree on21st May 1953 had not been completed at the time the question arosebefore the learned Commissioner. The fact that the question arose inexecution proceedings did not make it any the less a question that arosewhen the action was pending. In point are the observations of theJudicial Committee in the case of Redfield v. TheCorporation of Wickham1in which their Lordships were considering the interpretation to be placedon a certain provision of a statute which enacted that nothing thereincontained shall in any manner affect suits then pending in any court- oflaw :—
“ the respondents are within the exception, because the section inwhich their decree was obtained was actually in dependence at the timeof its passing. It was argued for the appellants that the. exception islimited to suits during their dependence, and does not apply to pro-ceedings taken in execution of a judgment after the suit is at ah end.That construction of the clause would deprive it of all meaning.”
For the reasons indicated above, I am of opinion that the accrued orvested right of the plaintiff to seize all sums of money by way of salaryand allowance extended also to sums of money which had not fallen dueon the date of the decree and that this right was not taken away by theAmendment Act-, No. 20 of 1954. The appeal is therefore allowed withcosts and the seizure in question will stand.
Appeal allowed.
{1883) L. It. 13 App. Cases 467, at 473.