011-NLR-NLR-V-73-A.-R.-F.-LOUIS-Appellant-and-AGNES-EMMANUEL-Respondent.pdf
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Louis r. Emmanuel
1970 Present: Siva Supramaniam, J., and Sainerawickrame, J.R. F. LOUIS.. Appellant, and AGNES EMMANUEL, .RespondentS. C. 172j6S (Inti/.)—D. C. Colombo, 5 755ID
Matrimonial action—Execution oj decree awarding alimony-—Right of wife to seizesalary and allowance of husband—Civil Procedure Code, as amended by ActATo. -5 of 1964, ss. -217, 217A, 21S (m), 596, CIS (/), 615 (2). 621.
Section 21 8 (n») of the Civil Procedure Code, as amended by Act No. 5 of 1DG4,does not deprive a wife of her right to soizo the salary and allowance of herhusband in execution of a decree for alimony in her favour. The exemptionunder section 213 {m) applies only to seizures under writs issued in executionof decrees in ordinary civil actions and cannot have application to orders formaintenance made under soction 615 (2) of the Civil Procedure Code.
De Jonh v. De Jonh (72 N. L. R. 141) not followed.
ApPEAL from an order of the District Court, Colombo.
C. Chellappah, with J. It. 31. Fernandopulle, for the plaintiff-appellant.•• D. R. P. Goonelillekt, for the defendant-respondent.
Cur. adv. wilt.
SIVA SUPRA MAXI AM, J.—lA>uia v. Kmmanuel43
March 12, 1970. Siva Sutramaniam, J.—
This is an appeal from an order of the District Judge of Colomborefusing to release from seizure a sum of money which forms part of theappellant’s salary and allowance that had been seized by the Fiscal inthe hands of the appellant’s employer, in execution of a writ issued at theinstance of the respondent in this case.
This was an action in which a decree for divorce was granted in favourof the respondent who was the wife on the ground of malicious desertionon the partof the appellant. The Court made a further order undersection 015 (2) of the Civil Procedure Code directing the appellant to payto the respondent a sum of Rs. 40 per month for her maintenanceand support. The appellant failed to pay this sum for eight months andon the application of the respondent the writ in question was issued bythe Court.
The appellant contends that under S. 218 (jw) of the Civil ProcedureCode, as amended by Act Xo. 5. of 1964, his salary and allowances are notliable to seizure as the aggregate amount of such salary and allowancesdoes not exceed five hundred rupees per mcrisum. The learned DistrictJudge held that sections 217 and 218 have no application to the writissued in this ease.
The Civil Procedure Code draws a distinction between ordinary civilActions’’ and matrimonial actions. Chapters IL£ to XXI deal with" ordinary civil actions ” and Chapter XXIfprescribcs the procedure to befollowed in regard to the execution of decrees in such actions. ChapterXLH prescribes the procedure to bo followed in matrimonial actions.Section 596 provides that the procedure generally in matrimonial casesshall, subject to the provisions in Chapter XLIf, follow the procedureherein before set out with respect to ordinary actions Under section624, “ all decrees and orders m;vle by t lie court in any action or proceeding
under this Chapter shall be enforcedin the like maimer ns the decrees
and orders of the court made in rile exercise, of its orginal civil jurisdictionarc enforced. ”
A decree of the court directing a husband to pay a sum of money weeklyor monthly for the maintenance and support of the wife may, therefore,be "enforced in like manner ” as a decree to pay money. But it docs notfollow that the decree itself is one that falls under head (A) of 55. 217.
S. 217 (A) refers to decrees in ordinary c-ivil actions only.
In granting a creditor, who has a decree in his favour which falls underhead (A) of S. 217, the power to seize and sell property belonging to hisdebtor to seen re satisfaction of his debt, the legislature exempted certaintypes of property from seizure. The exemptions have been designed prinia-■ rily to ensure that the debtor is not subjected to personal embarrassment or
44SIVA SUPRA M AX LA M. J.—Com'j, c. Emmunue.l
to hardships and difficulties in earning his livelihood or in maintaininghis family. Among the property so exempted, by a subsequent amend-ment of the section, is the salary and allowances of a debtor who is anemployee whose aggregate salary and allowances do not exceed Rs. 500.This exemption was obviously intended to ensure that a creditor did notlevy execution in such a way as to render his debtor, his wife and childrendestitute, and that a debtor who was an employee was left with sufficientmeans to maintain his wife and children. It would defeat the very objectof the exemption if a husband could rely on it- to deprive the wife of a sumof money decreed by the court- for her maintenance and support.
The exemption under S. 2IS (mi) will apply only to seizures underwrits issued in execution of decrees in ordinary civil actions and cannothave application to orders for maintenance made under S. 615 (2).
Counsel for the appellant invited our attention to the judgment ofthis Court in De Jonk v. De Jonh1 in which it was held thatthe exemption mder S. 218 (mi) applies to a seizure of- the salary in' execution of an order for alimony. We regret very much that wc areunable to agree with that view.
Counsel for the appellant also submitted that the order for alimony inquestion is not enforceable and cited in support the decision in Nadarasav. Nava-many s. It was held in that case that where a decree for"dissolution of marriage is entered at the suit of a husband, a promiseby the husband to make an ex gratia payment to the wife cannotbe incorporated in the decree so as to compel him to pay the sum. Thatdecision has no application to the facts of this case. In this action,although the appellant instituted the plaint, the dissolution of marriagewas granted on the respondent’s prayer contained in her amendedanswer, and the courthadpower to make an order for permanent alimonyunder S. 615 (1). The order for maintenance made under S. 615 (2) wastherefore a valid ono.
We are of opinion that the learned District Judge was right in refusingto release the seizure.
The appeal is dismissed with costs.
Samerawickbame, J.—I a.ree.
Appeal dismissed.
' J U969) 72 N. L. R- U0.« {1962) 64 -V. L. R. 232