Patel v Highlands Produce Mill (C.A. No. 21/1937) [1937] EACA 196 (1 January 1937)

### APPELLATE CIVIL

#### BEFORE WEBB, J.

# AMBALAL CHHOTABHAI PATEL, Appellant (Original Defendant)

### THE HIGHLANDS PRODUCE MILL, Respondent (Original Plaintiff)

## C. A. No. 21/1937

Limitation—Execution—Decree—"Money secured by a judgment"—

Limitation Ordinance, 1934, secs. 3, 41-Indian Limitation Act,

1877, Sch. II, Art. 179.

The respondent obtained a decree, dated 1-3-1932, against the appellant: on 25-3-1937 he applied for execution.

Held (10-7-37).—That, as in Kenya the words "decree" and "judgment" are technical terms defined by the Civil Procedure Ordinance, 1924, and as the<br>sum of money adjudged to a successful party is secured by the "decree",<br>and not by the "judgment", the words of sec. 3 of the Limitation Ordinance, decree, which by virtue of the proviso to sec. 41, remains that fixed by Art. 179 of Schedule II to the Indian Limitation Act, 1877.

*Lean*, for the appellant: $-$

Section 3 of the Limitation Ordinance, 1934, fixes twelve years as the period of limitation for "proceedings brought to recover any sum of money secured by the judgment", but here the money is not secured by the judgment, as defined by the Civil Procedure Ordinance, 1924, sec. 2 (10), but by the decree. It is on the decree that execution proceedings are based. The section was copied from section 8 of the English Real Property Limitation Act, 1878, but in England what we call a "decree" is called a judgment: see the Forms of Judgments given in the appendix to the Annual Practice, and the Official Requirements on issuing Execution (Annual Practice 1936 p. 2737). As section 3 does not apply then by section 41 the period of limitation is three years (Indian Limitation Act, 1877, Sch. II, Art. 179), and the present application is out of time.

Saville, for the respondent: —

The money is "secured by the judgment", see Civil Procedure Ordinance, section 25: "The Court shall pronounce judgment and on such judgment a decree shall follow"; and O. 18 r. 4: "Judgments shall contain... the points for determination, the decision thereon, and the reasons for such decision". Obtaining a decree is merely a step in proceedings for execution. The "judgment" is the effective authority for the issue of the "decree", which must correspond with it, O. 18 r. 6. The legislature must be taken to have used the word "judgment" in section 3 as equivalent to "decree"; it is so used in the Bankruptcy Ordinance, 1930, sections 3 (1) $(g)$ , 4, 43 (2). The Court should not allow the mistake of the draftsman (if there was a mistake) to defeat the intention of the legislature: Salmon v. Duncombe (11 A. C. 637, 42 E. E. Dig. 676 par. 874).

Lean replied.

JUDGMENT.—This was an application for the execution of a decree against the appellant. The decree is dated 1-3-1932 and the application for execution is dated 25-3-1937. When the matter came before the Resident Magistrate it was objected on behalf of the appellant that the decree was barred by limitation, the learned Resident Magistrate, however, decided in favour of the decree-holder, but gave the judgment-debtor leave to appeal.

The question turns on the interpretation of section 3 of the Limitation Ordinance 1934, which provides: "All suits or proceedings brought to recover any sum of money secured by any ... judgment ... shall and may be brought at any time within twelve years next after a present right to receive or have the same shall have accrued ... " and the short point for decision is whether the draftsman, by the use of the word "judgment", has not inadvertently defeated what was possibly the object of the legislature, namely to substitute a different period of limitation for that fixed by Art. 179 of Schedule II to the Indian Limitation Act, 1877: "For the execution of a decree or order of any Civil Court . . . Three years, etc. From the date of the decree or order, etc." Section 3 is taken almost verbatim from section 8 of the Real Property Limitation Act, 1874, and the difficulty arises from the fact that in Kenya the word "judgment" is a term of art, defined by section 2 (10) of the Civil Procedure Ordinance 1924, as "the statement given by the judge of the grounds of a decree or order", while in England the word is not so defined, but includes not only what we call a "judgment", but also "the formal expression of an adjudication", which we, following the terminology of the Indian Civil Procedure Code, call a "decree"-see Civil Procedure Ordinance 1924, section 2 (4), and Indian Civil Procedure Code, section 2 (2). Thus, in Wharton's Law Lexicon under "judgment" we find: "Judicial determination; decision of a Court. Under the former practice of the Superior Courts, this term was usually applied only to the Common Law Courts, the term 'decree' being in general use in the Court of Chancery. The expression 'judgment', however, is now used generally, except in matrimonial causes, the term 'judgment' including 'decree' (Jud. Act, 1873, sec. 100). . . The word 'judgment' is also used to denote the reasons given by the Court for its decision". Throughout our Civil Procedure Code the distinction appears to be carefully maintained: e.g. section 25, "The Court, after case has been heard, shall pronounce judgment, and on such 'judgment' a decree shall follow", and O.18; it is a decree and not a judgment that is executed (section 28-51): it speaks of "decree-holder" and not of "judgment-creditor" (section 2 $(5)$ ; and though it uses the conventional term "judgment-debtor", that is defined as "any person against whom a decree has been passed $\ldots$ " (section 2c.). It is true that, as Mr. Saville points out, in the Bankruptcy Ordinance, 1930, "judgment" is used when one would rather have expected "decree": section 3 (G), "If a creditor has obtained a final judgment or final order against him for any amount and, execution thereon not having been stayed ..."; section 4, "A bankruptcy notice ... shall require the debtor to pay the judgment debt ... in accordance with the terms of the judgment $\ldots$ " Section 43 (2), "where under an execution in respect of a judgment for a sum exceeding Sh. 400" but, in my view, no argument can be based on this: though the expression is inexact the meaning is clear.

Now, can it be said that, when a judge has given judgment in favour of a plaintiff for a sum of money, that money is "secured by the judgment"? In my opinion the answer must be in the negative. The plaintiff's security is not the reasons given by the judge for his decision upon the various questions of fact or law which were in dispute, but the formal expression of the adjudication upon which execution may issue, that is to say the decree.

But then it is argued that, as the legislature must be supposed to have meant "decree" when it said "judgment", therefore the Court should so interpret the word. It may be that the legislature did so intend, but it has used the word "judgment", which, as I have already said, is, in my opinion, a technical term, and in such a case, "The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one ... " (Maxwell (7 Ed.) p. 2); "Whatever the instrument it must receive a construction according to the plain meaning of the words... therein contained... and it is arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself, and, having made that fallacious assumption, to bend the language in favour of the assumption so made". (Halsbury L. C. Leader v. Duffy 13 A. C. 294). In Green v. Wood (14 L. J. Q. B. 217) Lord Denman C. J. said: "It is undoubtedly true that the Court will always put such a construction on the words of an Act of Parliament as will carry out the object of the legislature; but if the Act of Parliament uses words which do not carry out the supposed intention of the legislature, the Court cannot add them ... We cannot introduce a new provision into the Act merely because we think those who framed it would have done so if the question had presented itself to them. It is the duty of judges to confine themselves to the express provisions of Acts of Parliament".

Mr. Saville in his interesting argument has relied on Salmon $v$ . Duncombe (11 A. C. 627), the headnote to which is: "Where the main object and intention of a Statute are clear it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of law except in the case of necessity or the absolute intractability of the language used. The clearly expressed intention of Natal Ordinance No. 1 of 1856 was to give to any subject of the Queen resident in Natal the power of disposing by will according to English law of property both real and personal, which otherwise would devolve according to Natal law. Section 1 was operative for that purpose except that it concluded with the provision "as if such subject resided in England", the effect of which is to leave both the lex situs and lex domicilii in operation, thus reducing the section to a nullity: Held, that these words ought not to be so construed as to destroy all that has gone before, and therefore should be treated as immaterial". But in that case it is to be observed that the title and preamble of the Ordinance showed clearly what its object was, and were relied upon by the Judicial Committee for that purpose, and, further, that any other construction would have altogether deprived the ordinance of meaning. Our Ordinance (No. 21/1934) is entitled only "An Ordinance to consolidate and amend the Law relating to Limitation", and the proviso to section 41 keeps alive the provisions of the Indian Limitation Act, 1877, in respect of any act matter or thing for which the Ordinance does not provide a period of limitation. Therefore the mistake of the draftsman-if it was a mistake-cannot be said to have left no period of limitation for the execution of a decree: For this reason, I think that Salmon v. Duncombe (supra) is distinguishable, and in the present case, I am of opinion that it is better that the Court should abide by the words of the Ordinance rather than to seek to reform it according to the supposed intention of its framer.

For the foregoing reasons, I am of opinion that section 3 of the Limitation Ordinance, 1934, does not apply to the execution of a decree, and that consequently, the application in the present case was barred by limitation. The decision of the learned Resident Magistrate is reversed with costs here and below.