PERIS v. PERERA.

PERIS v. PERERA.

D. C., Ratnapura, 2,395.

Decree-Revival of-Delay in recovery of judgment-debt-Old procedure- Civil Procedure Code, ss. 2, 5, and 337-Effect of repeal of s. 5 of Ordinance No. 23 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 till 1899, when plaintiff's motion to revive the writ was allowed, without proof of any explanation as to his delay in obtaining satisfaction, as provided by section 337 of the Civil Procedure Code.

Held that, as section 5 of the Ordinance No. 22 of 1871, which created the presumption of satisfaction of judgment, was repealed by the Code without affecting any right which had accrued under that section, and as, at the time when the repeal came into operation in August, 1890, ten years had not elapsed from the date of the decree, the plaintiff's right to have his writ re-issued as a matter of course under the old procedure was conserved to him, and it was not necessary on his part to revive the judgment as a preliminary to his application for the writ.

Sinnana Chetty v. Ukkuwa (D. C, Kegalla, 5,902), decided on 19th May, 1897, overruled.

IN this action the plaintiff sued the defendant upon a promissory note to recover Rs. 120 with interest, and a decree by default was entered in favour of the plaintiff on 14th April, 1882. Writ of execution was issued on 3rd May, 1882, and re-issued on 17th July, 1883, and a sum of Rs. 11.88 recovered and brought to the credit of the plaintiff on 3rd September, 1883. On 16th February, 1888, the plaintiff moved for an order of payment of the amount recovered in 1883, and on 1st March, 1899, he moved for a notice on the defendant to show cause why the judgment entered in this case should not be revived and writ issued to recover the balance. 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 Procedure Code, which provides that, when an application to execute a decree has been granted under chapter 22, no subsequent application to execute the same decree shall be granted unless the Court is satisfied that on the last preceding application due diligence was used to procure complete satisfaction, or that execution was stayed by the decree-holder at the request of the judgment-debtor; but plaintiff's proctor maintains that this case must be dealt with under the old procedure, and cites D. C, Galle, 44,903 (Wickramesinha v. Jayawardana), in which it was held by

the Supreme Court on 3rd February, 1899, that as decrees under the old practice were allowed to be revived as a matter of course (3 Lornesz, 210), it was not necessary for the judgment-creditor to offer any explanation as to his delay in applying for the writ. I yield to the ruling in this case, and, as it is not contended that the 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 of Withers, J.

Cur. adv. vult.

11th July, 1899. Withers, J.-

The simple but important question in this case is, What is the effect of 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, for Rs. 120. In 1883 he recovered Rs. 11.88 in part execution of the judgment. Now, after that date no writ, warrant, or process in further execution of the judgment was issued.

It was admitted that, if section 5 of Ordinance No. 22 of 1871 was still in force, that judgment must be deemed to be satisfied.

But it so happens that, when the repeal of that section came into operation in August, 1890, ten years had not elapsed from the date of the judgment.

The Civil Procedure Code of 1889 repea

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