Raman Chetty V. Weerapatiran Kangany

[FULL BENCH.]

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wood Renton, and Mr. Justice Grenier.

RAMAN CHETTY v. WEERAPATIRAN KANGANY.

D. C, Kurunegala, 3,841.

Action against kangany on promissory notes executed before Ordinance No. 9 of 1909 came into operation - Judgment obtained after Ordinance came into operation-Kangany not liable to arrest.

Plaintiff sued defendant, a kangany, on February 10, 1910, on two promissory notes dated October 22, 1908, and January 24, 1909, and obtained decree in March, 1910.

Held, that the defendant was not liable to arrest for the debt. (1) (Per Hutchinson C.J. and Wood Renton J.) The plaintiff had. at the time when Ordinance No. 9 of 1909 came into operation, " acquired " no " right" to enforce his decree by imprisonment within the meaning of section S (3) (b) of Ordinance No. 21 of 1901. (2) (Per Wood Renton and Grenier JJ.) Apart altogether from the provisions of that Ordinance (No. 21 of 1901), section 19 enacted by Ordinance No. 9 of 1909 is retrospective.

Ganier v. Suppen Kangany1 over-ruled.

THE facts of this case are fully set out in the judgment of Wood Renton J.

Sampayo, K.C., for the appellant.-The notes sued upon were made before the Ordinance No. 9 of 1909 came into operation; at the date when the Ordinance came into operation the plaintiff had acquired a right to recover his debt in the manner permitted by the law as it stood at the .time of the making of the note. Section 5 (3) of Ordinance No. 21 of 1901 enacts that in the absence of express provision to that effect, a repeal shall not affect any right acquired under the repealed law. It has been held in Gamier v. Suppen Kangany1 that section 5 of Ordinance No. 9 of 1909 does not contain any express provision giving that section a retrospective effect. The plaintiff in this case had, at the time the new Ordinance came into operation, acquired a right to recover bis debt from the defendant-if need be by getting him arrested. [WOOD RENTON J.-Can it be said that a man has a vested right to put another in jail ? Is not the arrest of a debtor merely a procedure provided by law for recovery of the debt ?] No; it is 1 (1910) 13 N. L. R. 169.

Oct. is, 1910 not a question of procedure; it is a substantive right. Counsel Raman referred to Maxwell on the Interpretations of Statutes (4th ed.), Chetty v. pp. 321 and 387, and Orchard v. Caruuai. [1 (1910) 2 Cur. L. R. 50. ]

No appearance for respondent.

Cur. adv. vult.

October 18, 1910. HUTCHINSON C.J.-

On February 19, 1910, the plaintiff brought this action on two promissory notes dated October 22, 1908, and January 24, 1909, and in March he obtained a decree for payment. He issued a writ of execution, but his decree was not satisfied, and he then applied for execution by attachment and imprisonment of the debtor. The Court refused his application, and he appeals against the refusal. Section 5 of Ordinance No. 9 of 1909, which came into force on October 1, 1909, enacts that: " From and after the commencement
of this Ordinance no kangany shall be liable to arrest under the provisions of ' The Civil Procedure Code, 1889, ' in execution of a decree for money.'' This section in effect repeals the provisions of the Civil Procedure Code as to arrest in execution of a decree for money so far as kanganies are concerned, and this defendant is a kangany. But the Interpretation Ordinance, No. 21 of 1901, section 5, enacts that a repeal shall not, in the absence of any express provision to that effect, affect (amongst other things) any right acquired under the repealed law, and the appellant contends that there is no such express provision in the Ordinance of 1909, and that the plaintiff had acquired a right under the Civil Procedure Code to have his debtor imprisoned. I have already expressed my opinion in Gamier v. Suppen Kangany [2 (1910) 13 N. L. R. 169.] .that the wo

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