028-NLR-NLR-V-60-A.-P.-M.-KIRI-BANDA-Appellant-and-P.-D.-M.-BISO-MENIKA-Respondent.pdf
H. X. G. FERNANDO, J.—Kiri Banda v. Biso Menitca
94
1957Present: H. N. G. Fernando, J.P. M. KIRI BANDA, Appellant, and P. D. M. BISO MEK1KA,
Respondent
S. C. 1334—M. 0. Kegalle, 14957
Kandyan Law—Maintenance—Order made under Kandyan Marriage anil DivorceOrdinance {Cap. 96), s. 20—Jurisdiction of Magistiate’s Court to enforceit—Effect of Kandyan Marriage and Divorce Act, No. 44 of 1952, s. 69 —Interpretation Ordinance, s. 6 (3).
Where an application for dissolution of a marriage under section 20 of theKandyan Marriage and Divorce Ordinance was pending before a Registrarat the time when that Ordinance was ropealed by Act No. 44 of 1952 and washeard and concluded after the repealing Act came into operation on 1st August,1954—
Held, that, by virtue of the provisions of section 6 (3) of the InterpretationOrdinance, the order for maintenance made in the application was enforceableby a Magistrote’s Court acting under section 20 (5) of the repealed Ordinance.
The position would be no different even if the order for maintenance had beenmade before the date of the repealing statute.
jAlPPEAL from a judgment of the Magistrate’s Court, Kegalle.
P. Ranasinghe, for the defendant-appellant.
A. R. Gandappa, for the complainant-respondent.
Our. adv. mdt.
July 30, 1957. H. N. G. Fernando, J.—
The marriage of the appellant and his wife was dissolved on 13thOctober 1954 by the Assistant Provincial Registrar in pursuance ofsection 20 of the Kandyan Marriage and Divorce Ordinance (Cap. 96).
H. N. G. FERNANDO, J.—Kiri Banda v. Biso Menika
95
Although the Ordinance had at that date been repealed and replacedby the Kandyan Marriage and Divorce Act No. 44 of 1952 (which cameinto operation on 1st August 1954) it is conceded that the order fordissolution was duly made because the application therefor was pendingbefore the repeal and was properly heard and determined under therepealed law. It is conceded also that the order for maintenance whichis the subject of the present appeal, was duly made under the repealedsection 20 (2). These concessions are founded on the transitionalprovisions in section 69 of the Act of 1952.
In September 1956, the divorced wife, who is the respondent to thisappeal, applied to the Magistrate to enforce payment in terms of theorder for maintenance—a power conferred on the Magistrate by section20 (5) of the repealed Ordinance—and order was made accordingly.The present appeal is against that order, the ground of appeal being thatthe repeal of the Ordinance took away from the Magistrate the jurisdictionto enforce the order for maintenance. Counsel has relied upon the deci-sion of Sansoni, J. in the case of D. M. Abeysekera v. Somawathie Abey-sekera1. where after an examination of the transitional sections in thenew Act, it was held that nothing in those sections kept alive the provisionin section 20 (5) of the former Ordinance conferring the jurisdiction forenforcement on a Magistrate. While considering that the transitionalprovisions may cover a case where application for the enforcement orderhad been made before the repeal became effective, my brother held thatthe case of an application made subsequently is not so covered. Itseems to me that his attention was not drawn to section 6 (3) of theInterpretation Ordinance which provides in substance that a repeal shallnot affect
‘'(b)…. any rightacquired under the
repealed written law;
(o)any action, proceeding, or thing pending or incompleted whenthe repealing written law comes into operation, but every such action,proceeding, or thing may be carried on and completed as if there had
been no such repeal. ”
The order for the payment of maintenance in this case conferred on theapplicant in whose favour it was made a right to receive payments fromtime to time, and, since the order was made under the repealed law, itfollows that the right to the payments was a right acquired under thatlaw within the meaning of paragraph (b) as set out above. It is idlefor the Legislature to declare that such an acquired right is not to beaffected by a repeal, unless there was an intention that the right should beenforceable in the same manner as before. This intention is set out quiteclearly in the corresponding English Statute: section 38 (2) (/) of theEnglish Interpretation Act expressly saves any “ remedy in respect ofsuch right ”. But I do not think that the absence of similar expressprovision in our Statute makes any significant difference. The applica-tion to the Registrar for an order of maintenance was a “ proceeding ”which was pending or incomplete when the former Ordinance was
1 (1957) 60 N. L. B. 0$,
H. N. G. FERNANDO, J.—Kiri Banda v, Biso Meniha
repealed. Can it be said that that “ proceeding ” terminated when theRegistrar made his order for maintenance ? I think not, for the reasonthat the order was of such a nature that it would need enforcement (ifnot complied with) in the manner prescribed by the Ordinance ; and theposition would in my opinion be no different even if the order for main-tenanace had been made before the date of the repeal. An ordinarycivil action does not necessarily terminate with the entry of a decree,and procedure for execution of the decree is a step in the action, howeverlong the interval between the decree and the application for execution.If therefore an action has been instituted under some Statute, section6 (3) of the Interpretation Ordinance will enable the action to becontinued right up to execution despite the repeal of the Statute. Inthe present case the order happens to be one which may necessitate re-peated recourse to execution procedure because the order provides forrepeated payments during an indefinite period. But the right to seekenforcement of the order from time to time was a right which theapplicant acquired when she first made application to the Registrarunder the Ordinance for an order of maintenance, and the repealedprovision for enforcement can therefore be invoked so long as the orderremains in force.
The appeal is dismissed with costs fixed at Rs. 31 /50.
Appeal dismissed.