Saibo v. Peiris.
Present: Lyall Grant J.
SAIBO v. PEIRIS.
160—C. R. Matale, 1J.62.
Seizure oj debt—Notice on debtor—Objection that debt is not liable to seizure—Civil Procedure Code, ss. 229 (a), 230.
It is not open to a person, on whom notice has been served undersection 230 of the Civil Procedure Code to bring into Court a debt seizedunder section 229 (a), to contend thai the debt is not liable to seizure.
1 1 Dc G. F. it- J. 270—46 E. R. page 362.
LYALL GRANT J.—Saibo v. Peiris.
^^PPEAL from an order of the Commissioner of Requests, Matale.
D. S. Jayawickreme, for appellant.
Navaratnam, for respondent.
February 2, 1932. Lyall Grant J.—
The plaintiff brought an action for goods sold and delivered againstthe defendant, who is a school teacher. Judgment was entered byconsent, payable by instalments. Execution of the decree was allowedat a later date and writ was issued.
In connection with the execution proceedings a prohibitory notice wasserved upon the Manager of the Christ Church Vernacular School, theRev. Mr. W. Peiris, prohibiting him from paying to the defendant thesalary due for the month of September, 1931. The case appears tohave proceeded under section 229 of the Code, and under section 230the plaintiff moved for a notice on the Rev. Mr. Peiris to show causewhy he should not remit to Court the money seized under the writ ofexecution. The Rev. Mr. Peiris appeared in answer to this notice andsaid he had cause to show as he submitted that the salary of a vernacularschool teacher comes under section 218 (h) as it is paid wholly byGovernment.
A date was given to consider this objection. After argument, atwhich the judgment-debtor does not appear to have been represented,the learned Commissioner made this order:“ It appears to me that
the submission of the respondent is correct and that the salary ofdefendant should be reckoned as being that of a public servant, andconsequently not liable to seizure. I direct that the seizure be with-drawn ”.
An examination of section 230 of the Code points to the inferencethat the only cause which a debtor, prohibited under clause (a) ofsection 229, is allowed to show against remitting money to Court is thathe is not indebted. Here, there is no doubt that the respondentMr. Peiris was indebted to the judgment-debtor and although the objectionwas not taken, it seems to me that it was not in his mouth to raise theobjection that the money in his hands was money which could be seizedfor the debt or not. That was a point which could be raised by thejudgment-debtor in a question between him and the creditor, but notby the third party respondent. The practical difficulty of the courseadopted' is that the debtor, the person chiefly interested in the matter,was not before the lower Court and is not before this Court, and if onewere to decide upon the question, which rightly concerns him as towhether his salary is liable to seizure or not, one would have to do soin his absence. I do not think it was open to the Court to decide thequestion in the absence of the judgment-debtor. The proper orderin my opinion ought to have been that the Rev. Mr. Pieris should remitto Court the money seized under the writ of execution : that wouldleave it open to the defendant to make any application which he wished.
AKBAR J,—Assistant Government Agent, Puttalam v. Peiris.
The order of the Commissioner will therefore be set aside and therespondent will be directed to remit to Court the money which wasseized under the writ of execution. The respondent must pay thecosts of this appeal and also the costs of the proceedings in the lowerCourt from and including October 21, 1931.
SAIBO v. PEIRIS