WIJEYEWARDENE J.—The Deputy Financial Secretary v. Sirisena. 175
1941Present: Wijeyewardene J.
THE DEPUTY FINANCIAL SECRETARY, Appellant,and SIRISENA et al, Respondents.
56—M. C. Matara, 22,207.
Maintenance—Enforcement of order of maintenance—Movable property ofincorporeal nature—Cannot be distrained—Maintenance Ordinance(Cap. 76), s. 8.
Where service gratuity due under the rules regulating pensions andallowances granted to public servants was distrained under a warrantissued under the Maintenance Ordinance—
Held, that the property distrained under a warrant under theMaintenance Ordinance should be movable property of a corporealnature.
A PPEAL against an order of the Magistrate’s Court, Matara.
H. T. Gunasekera, C.C., for the appellant.
S. W. Jayasuriya, for the respondents.
Cur. adv. vult.
March 27, 1941. Wijeyewardene J.—
The first respondent obtained an order under the Maintenance Ordi-nance, 1889, directing her husband the second respondent to pay anallowance of Rs. 10 a month for the maintenance of herself and her twochildren. The second respondent was employed as a porter under theCeylon Government Railway at the time the order was made againsthim. Subsequently he retired from Government Service in 1939 andbecame entitled to claim service gratuity under the Rules regulatingthe pensions and allowances granted to public servants.
As the second respondent owed a sum of Rs. 75 under the order formaintenance, the first respondent’s Proctor moved for a “ distresswarrant to issue for seizure of the second respondent’s service gratuityto the extent of Rs. 75 in the hands of the- Additional Controller ofEstablishments ”. The Magistrate allowed this motion and for thepurpose of the warrant adopted Form 3 in the Schedule to the Maintenance1 (1914) 2 Batosingham's Notes of Cases 58.
176 WXJEYEWARDENE J.—The Deputy . Financial Secretary v. Sirisena.
Ordinance but altered it to bring it into line with the motion of thefirst respondent’s Proctor. The warrant, as issued, authorises the Fiscalto make distress by seizure of second respondent’s “ service gratuityto the extent of Rs. 75 in the hands of the Additional Controller ofEstablishments Acting under this warrant, the Fiscal served a noticeon the appellant—the Deputy Financial Secretary—requesting him tohold a sum of Rs. 75 subject to further orders of the Magistrate.
On an application made by the appellant against that notice, theMagistrate held that the service gratuity could be distrained under awarrant issued under the Maintenance Ordinance. The present appealis preferred against that order.
In view of the objection taken by the first respondent that the orderin question is not an appealable order, I propose to deal with the matterby way of revision.
The short point that has to be decided is whether under a warrantunder the Maintenance Ordinance the Fiscal could deal with movableproperty of an incorporeal nature.
Section 18 of the Maintenance Ordinance requires the Forms givenin the Schedule to the Ordinance to be used, and, therefore, there is statu-tory authority for the use of Form 3 when a warrant has to be issuedunder section. 9. That Form authorises the Fiscal “ to make distressby seizure of any movable property ” and sell the property so “ dis-trained ”. Moreover, section 9 of the Ordinance enacts that the warrantshould direct “ the amount due to be levied in the manner by lawprovided for levying fines imposed by Magistrates ” ; and section 312 (2)of the Criminal Procedure Code lays down that fines should be levied by“distress and sale” of movable property.
“ Distress ” is defined in Halsbury’s Laws of England (Volume 11para. 198) as “ a summary remedy by which a person, in order to ministerredress to himself, is entitled without legal process to take into hispossession the personal chattels of another person to be held as a pledgeto compel the performance of a duty, &c. ” The conception of “ distress ”as a form of pledge appears to me to underlie the provision in Form 3in the Schedule to the Maintenance Ordinance that a certain periodof time should be allowed to the party liable to pay the allowance evenafter the property has been distrained before the Fiscal proceeds to sellthe property. Under the English Law, the right to distrain is giveneither by Common Law, by Contract or by Statute, e.g., the Poor ReliefActs and the Summary Jurisdiction Acts. Under the Common Law,the right to distrain applies to goods and personal chattels and not tochattels of an incorporeal nature and money is not distrainable “ unlessit is in a bag or in such a closed or sealed receptable that it can be identi-fied ” (vide Halsbury’s Laws of EnglandVolume 11 para. 246). A sta-tutory power of distress confers no further rights than those given by theStatute.
There are Indian decisions given under sections 386 and 488 of theIndian Code of Criminal Procedure, 1898, dealing with the present'question. Section 488 (3) of that Code corresponds to section 9 of the
Mohideen v. Lanka Matha Co-op. Stores Society, Ltd.
^Maintenance Ordinance and provides foT the issue of a warrant “forlevying the amount due in manner hereinbefore provided for levyingdines
Section 386 of the Indian Code of 1898 corresponds to section 312 (2)of our Code and authorises the issue of a warrant for the levy of a finehy “ distress and sale of movable property.”
In the Secretary of State v. Sengammal et al Ayling J. and SrinivasaAiyangar J. held that the movable property referred to in section 386of the Indian Code was “ tangible and corporeal movable propertyThis case was mentioned with approval in a later case (vide Pichu Vadhiarv. Secretary of State *).
Section 386 of the Indian Code was amended, in 1923 and one of theamendments was the substitution of the words “ attachment and saleof any movable property ” for “ distress and sale of movable propertyEven after this amendment it was held in Maung Soe Hlaing v. Me TheinKhin3 that “ salary not yet drawn by a Government Servant ” couldnot be regarded as movable property within the meaning of section 386of the Indian Code.
I hold that the property distrained under a warrant under the Main-tenance Ordinance should be movable property of a corporeal nature,and I set aside the order, made by the Magistrate on October 17, 1940.
Order set aside.
THE DEPUTY FINANCIAL SECRETARY, Appellan, and SIRISENA et al. Respon