052-NLR-NLR-V-06-PERIS-v.-PERERA.pdf
1899.
July JJf.
🙁 230 )
PERIS v. PERERA.
D. C., Ratnapura, 2,395.
Decree—Revival' of—Delay in recovery of judgment-debt—Old procedure—
Civil Procedure Code, ts. 2, 5, and 337—Effect of repeal of s. 5 of
Ordinance No. 22 of 1871.
The plaintiff, having obtained judgment against the defendant in 1882,took out a writ of execution and recovered a part of his debt in 1883.Nothing was done afterwards in further execution of the decree till1899, when plaintiff’s motion to revive the writ was allowed, withoutproof of any explanationasto hisdelay in obtaining satisfaction,as
provided by section 337 of the Civil Procedure Code.v
Heldthat, as section5of theOrdinance No. 22of1871, which
createdthe presumptionofsatisfaction of judgment,wasrepealedby
the Code without affecting any right which had accrued under thatsection,and as, at thetime whenthe repeal cameintooperationin
August, 1890, ten years had not elapsed from the date of the decree, theplaintiff's right to have his writ re-issued as a matter of course underthe old procedure was conserved to him, and it was not necessary on hi9part to revive the judgment as a ■ preliminary to his application forthe writ.
Sinnana Chetty v. Ukkuwa (D. C., Kegalla, 5,902), decided on 19th May,1897, overruled.
I
N this action the plaintiff sued the defendant upon a promissorynote to recover Rs. 120 with interest, and a decree by default
was entered in favour of the plaintiff on 14th April, 1882. Writof execution was issued on 3rd May, 1882, and re-issued on 17thJuly, 1883, and a sum of Rs. 11.88 recovered and brought to thecredit of the plaintiff on 3rd September, 1883. On 16th February.1888, the plaintiff moved for an order of payment of the amountrecovered in 1883, and on 1st March, 1899, he moved for anotice on the defendant to show cause why the judgment enteredin this case should not be revived and writ issued to recover thebalance. The motion being allowed, the Court heard both parties,and made order as follows on 25th April, 1899: —
“ Defendant’s proctor relies on section 337 of the Civil Proce-dure Code, which provides that, when an application to executea decreehasbeengrantedunder chapter 22, no subsequent
application to execute the same decree shall be granted unless theCourt issatisfied thatonthe last preceding application due
diligencewasusedtoprocure complete satisfaction, or that
executionwasstayedbythedecree-holder at the request of the
judgment-debtor; but plaintiff's proctor maintains that this casemust be dealt with under the old procedure, and cites D. C., Galle,44,903 (Wickramesinha v. Jayawardana), in which it was- held by
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the Supreme Court on 3rd February, 1899, that as decrees underthe old practice were allowed to be revived as a matter of course(3 Lornesz, 210), it was not necessary for the judgment-creditor tooffer any explanation as to his delay in applying for the writ. Iyield to the ruling in this case, and, as it is not contended thatthe debt has been satisfied, I allow the plaintiff’s application.”
The defendant appealed.
Wendt, for appellant.
Bawa, for respondent.
The arguments of counsel are stated in the judgment ofWithers, J.
Cur. adu. vtdt.
11th July, 1899. Withers, J.—
The simple but important question in this case is, What is theeffect o'f the repeal of section 5 of the Ordinance No. 22 of 1871*under the following circumstances?
The applicant recovered a judgment on the 14th April, 1882, forBs. 120. In 1883 he recovered Bs. 11.88 in part execution of thejudgment. Now, after that date no writ, warrant, or process infurther execution of the judgment was issued.
It was admitted that, if section 5 of Ordinance No. 22 of 1871was still in force, that judgment must be deemed to be satisfied.
But it so happens that, when the repeal of that section cameinto operation in August, 1890, ten years had not elapsed from thedate of the judgment.
The Civil Procedure Code of 1889 repealed section 5.
It was urged by appellant’s counsel that section 2 of the CivilProcedure Code of 1889 conserved his client’s right to have itdeclared that the judgment of 1882 was satisfied.
That section enacts as follows: “ On and from the date onwhich this Ordinance comes into operation, the Laws, Ordinances,sections of Ordinances, and Buies of Court, respectively mentionedin the first column of the first schedule hereto, shall be severallyrepealed to the extent mentioned in the third column thereof, butsuch repeal shall not affect (1) the past operation of any enactmenthereby repealed nor anything duly done or suffered under
* Section 5 of Ordinance No. 22 of 1871 enacted that every judgment, decree, ororder should be deemed to have been satisfied after the expiration of ten yearsfrom the time when such judgment, decree, or order shall have been finallypronounced, unless such judgment, decree, or order shall have- been duly revived,or unless some writ, warrant, or other process of law shall have been issued toenforce the same, in which case the said period of ten years shall be reckoned fromthe time when such revival shall have been decreed, or from the last time whensuch writ, warrant, or process shall have been issued.
1899.
July 11
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1899. any enactment hereby repealed; nor (2) any right, privilege,Jidyjl. obligation, or liability acquired, accrued, or incurred under anyWithers, J. enactment hereby repealed. ’’
The provisions of the latter clause were relied on by theappellant’s counsel.
Mr. Bawa’s answer to that contention was that the appellant’sright had not accrued, in the sense that it had not become full andcomplete at the date of the repeal. We reserved our judgment toconsider some unreported cases of this Court which were said tobe relevant.
In D. C., Kegalla, 5,902, T pronounced the following opinion:
“ It seems to me that neither before the Code could parties, norafter the Code (i.e., the Civil Procedure Code) can parties, take outexecution after more than ten years have elapsed since judgment,unless they prove that fraud or force has prevented their makingapplication in time.”
That opinion, so far as it goes, is in point, but though the ActingChief Justice, who presided in the Court of Appeal when that casewas argued, concurred with me in affirming the judgment ofthe Court below, he said nothing about the opinion which I hadexpressed. It is therefore open to me to re-consider thatopinion.
It has been held by this Court that section 337 of the CivilProcedure Code of 1889 applies only to cases where a previousapplication has beenmadeunder theCode forexecution of an
unsatisfied judgment, so that a person circumstanced as thedefendant is would, if Mr. Wendt’s argument is sound, have noremedy, however stale the judgment against him, if ten years hadnot elapsed between the judgment against him and the date of therepeal of section 5 of Ordinance No. 22 of 1871. Such caseswould be very hard, but we must take care to avoid the charge ofmaking bad law out of hard cases. In my opinion, however, Mr.Wendt’s argument is unsound.
The accrual of arightcannot,Iconsider,have the sense
contended for by Mr. Wendt. If ten years had elapsed betweenthe judgment of 1882 and the date of the repeal of section 5of Ordinance No. 22 of 1871, then the Ordinance No. 22 of 1871would have operated on the judgment.
But clause 1 of section 2 of the Civil Procedure Code of 1889.is directed, amongstotherthings,tothe pastoperation of an
enactment, which inthiscase issection 5 of Ordinance No.
22 of 1871. The provisions, therefore, of clause 2 -of the CivilProcedure Code of 1889 must apply to a different case. It appearsthat the right of the appellant to the presumption of satisfaction
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of a judgment ten years old accrued to him after the issue of theprocess under the judgment of 1883.
If the repeal had been absolute and unqualified, the appellant’scase would have been a very strong one.
Ten years having elapsed between the issue of that process andthe present application to execute the said judgment of 1882, itseems to me that the respondent has made out a good case, andthat the judgment appealed from ought to be affirmed.
Browne, A.J.—
I agree with my brother’s judgment, which appears to me to bein accord with the collective decision reported in 1 S. C. R. 307.The only right which was existent in August, 1890, when the CivilProcedure Code came into operation, was the right of thejudgment-creditor to have the writ re-issued in due course, andthat right section 2 of the Code conserved to him, with thefurther assistance that it was no longer thereafter necessary tohim to have the judgment revived as a procedure preliminary tohis application.
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1899.
July It
Withers,