033-NLR-NLR-V-72-B.-A.-R.-DE-JONK-Petitioner-and-M.-D.-ED-JONK-Respondent.pdf
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jDe Jonk v. Dc Jonk
1969 Present: H. N. G. Fernando, C.J., and Pandita-Gunawardene, J.A. It. DE JONK, Petitioner, and M. D. DE JONK, RespondentS. C. 70SjGS—Application for Revision in D. C. Colombo, 7409jD
Execution oj decrees—Matrimonial action—Salary oj an employee—Exemption fromseizure for alimony—Civil Procedure Code, s. 2IS (rn).
Section SIS (m) of tho Civil Procoduro Code, ns amended by Act Xo. 24 of19CI, debars the seizuro of tho salary of an employee (other than a public officeror sorvnnt) in execution of an order for alimony entered against him inmatrimonial action.^
* {1930) C. P. D. 1.1 Wille : Principles of S. African Law {2nd Edition), p. 214-
s Lee : An introduction to Jlotnan-Eutch Law {4th Edition) p. 1S2.
H. N. G. FERNANDO, C.J.—De Jonk v. De Jonk
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A. PPLICATION to revise an order of the District Court. Colombo.
Siva Rajaratnam, with C. Chakradaran, for the defendant-petitioner.
A. T. Williams, for the plaintiff-respondent.
May 22, 1969. H. N. G. Fernando, C.J.—
In this case writ had issued against the present petitioner for theseizure of his salary in execution of an order for alimony pendente Hieand of a decree for permanent alimony. The petitioner applied to theDistrict Court for a release of the seizure on the ground that under Section218 paragraph (m) of the Civil Procedure-Codeias amended by Act No. 24of 1961, the salary and allowances of an employee are exempt from seizure.The learned District Judge refused the petitioner’s application on theground that the provisions of Sections 217 and 218 of the Code do notapply to a decree in a matrimonial action.
Prima facie the provisions of Section 218 do apply in the case of anydecree to pay money, and counsel for the respondent in the presentapplication, despite an able argument, could not refer to any authorityin support of the Judge’s order. We ourselves see no ground upon whichto uphold the order.
Counsel has further argued that this application should now not beallowed because the order complained of was itself appealable and noappeal was taken from it.
The delay in the filing of this application has been quite brief and theremay well be explicable reasons why the petitioner and his legal advisorswere uncertain as to the correctness of the order briefly pronounced by thelearned District Judge.
Acting in revision we hold that the order made by the District Judgeon 25th September 1968 was illegal and we allow the application of thepetitioner dated 18th September 1968 for a direction to the Fiscal torelease the seizure. There will be no order for costs in respect either ofthe application in the District Court or of the present application.
Pandita-Gunawabdene, J.—I agree.
Order set aside