029-NLR-NLR-V-15-GRIGORIS-v.-THE-LOCOMOTIVE-SUPERINTENDENT.pdf
( 117 )
Present: Wood Renton J-
GRIGORIS o- THE LOCOMOTIVE SUPERINTENDENT.
463—C. li■ Kandy, 30,190-
Cicil Procedure Code, ss. ‘229, 232, and 218—Seizure of wages due tomechanicin hands of the Locomotive Superintendent — Prohi-
bitory notice—Attachment in the hands of the Attorney-General asrepresenting the Crown—Public servant—Labourer.
The respondent,(judgment-creditor),through the Fiscal,served on
the appellant(Locomotive SuperintendentoftheCeylonGovern-ment Railway) whatpurported tohe aprohibitory notice under
section 232 ofthe Civil Procedure Code,requestinghim tohold a
sum of Rs. 47.50outof the moneysdue tothe defendant(judgment-
debtor), who was a mechanic employed ondailywages on theCeylon
Government Railway.
Held, that the seizure was not in order.
The wages ought to have been seized in the manner indicated insection 229, and net by a prohibitory notice under section 232.
If the respondent can attach the debt at all, it must be attachedin the hands of the Attorney-General.
A mechanic inthe position ofthe judgment-debtor isneither a
public officer orservant under section 218(h),nora labourerunder
section 218 O').
> (1901) 2 Br. 240.
1912.
* (1908) 1 A. C. R. 3.
( 118 )
1912.
•Chrigoriev.
The
Locomotive
Superin-
tendent
T
HE facts appear sufficiently from the judgment of WoodRenton J.
Walter Pereira, K.C., S.-G., for the appellant.
J. W. de Silva, for respondent.
Cur. adv. vult.
February 2, 1912. Wood Renton J.—
The appellant in these proceedings is the Locomotive Superin-tendent of the Ceylon Government Railway in Nawalapitiya. Therespondent is the judgment-creditor of one Don Peiris, allegedto*be.a mechanic employed on daily wages on the Ceylon Govern-ment Railway. The amount of the judgment-debt, including costs,is Rs. 47.75. The respondent, through the Fiscal, served on theappellant what purported to be a prohibitory notice under section232 of the Civil Procedure Code, requesting him to hold the “ saidsum out of moneys due to the defendant. ” There was no allegationin the prohibitory notice that at the date on which it was issuedthere were in fact any moneys due to the judgment-debtor as wages,or that such moneys were in the appellant’s custody within themeaning of section 232. The appellant appeared and moved for anotice on the respondent to show cause why the prohibitory noticejust referred to should not be discharged with costs. It wascontended on his behalf that there was no money in his hands asLocomotive Superintendent owing to the judgment-debtor; that anymoney he might have had was due by the Grown; that that being so,the prohibitory notice should not have been served upon him; thatit could not be served on the Attorney-General, as the Crown is notbound by section 232; that the wages being a debt should havebeen seized under section 229 (a) of the Code, and not under section232; and, finally, that such wages could not be seized in executionat all, inasmuch as the judgment-debtor whs either a public officerwithin the meaning of section 218 (h), or a labourer within the mean-ing of section 218 (j), of the Civil Procedure Code. . The learnedCommissioner of Requests refused to discharge the prohibitorynotice, and the present appeal is brought against his refusal to do so.
The prohibitory notice is clearly defective, in that it contains nospecific allegation that there is in the appellant’s custody any' sumof money due to the judgment-debtor, out of which the respondentcan claim payment in whole or in part of his debt. Moreover, Ido not think that wages in the hands of a public officer, and due toan employ^ in the position of the judgment-debtor here, are“ property ” at all within the meaning of section 232 of the Code.They appear to me to come under section 229 (a), and to constitute“ a debt not secured by a negotiable instrument. ” If that view isright, then, assuming such wages to be seizable at all, they ought tohave been seized in the manner indicated in section 229, and not
( no )
by a prohibitory notice under section 232. Section 229 (c), alterdealing with (a) debts not secured by a negotiable instrument,, (b)shares in the capital of any public company or corporation, providesthat (c) other movable property not in the possession of “ thejudgment-debtor except property# in the custody of a
public officer ” shall be seized by a written prohibitory notice signedby the Fiscal. This provision is, I think, applicable only to propertyother than (a) debts not secured by a negotiable instrument, andincluding wages, and (b) shares in the capital of any company orcorporation. This construction of the section is corroborated by thewords id which the mode of seizure of the “ other .movable property "referred to in section 229 is defined: “ in the case of the other movableproperty except as aforesaid ”—that is to say, except as regards-property in the custody of a public officer, the seizure is to beeffected " by a written notice prohibiting the person in possession*of the same from giving it over to the judgment-debtor. ” Section-232 prescribes- the manner in which the excepted property is to beseized, and, in my opinion, does not apply to claims for wages,which are debts and nothing more. The cases which have been*decided under section 232 support my construction of the section.The property with which they dealt did not consist of wages due toemployes, but of sums of money deposited by such employes withthe heads of their departments for the due discharge of their duties'under Government (Albrecht v. Grebe,1 Tkiaharaja/pillai v Ranga-nather,2 and Ghittampalam v■ Bottoni 3).
If the only section of the Civil Procedure Code that can be madeapplicable to the present case is section 229, the order under appealmust clearly be set aside. The notice required by section 229 hasnot been given, and the appellant, the Locomotive Superintendentof the Ceylon Government Railway at Nawalapitiya, is not thedebtor of the judgment-debtor Don Peiris within the meaning olthat section. If the respondent can attach the debt at all, it mustbe attached in the hands of the Attorney-General, the representativeof the real debtor, namely, the Government of Ceylon.
I may say at once that I do not think that the present case can be-brought either under clause (h) or clause (j) of section 218 of theCivil Procedure Code. A-mechanic in the position of * the judgment-debtor here is not a public officer or servant [clause (h)], and I do not!think that he can fairly be regarded as only a labourer [clause (/)]**(see Jeehand Khusal v* Aba and Baika *).
Although it is unnecessary for the purpose of the present appealto decide the point, I was pressed by the learned' Solicitor-Generalto give a'ruling on the question whether the Crown is bound by the*provisions of section 229 of the Civil Procedure Code. I think thatthis point is one on which it is desirable that the opinion of a Bench;
i (1894) 3 C. h. R. 59.3 (1896) 3 .4, C. R. 125.
» (1908) 3 A. C. R. 123.* {1880^5 I. L. R. Bom. 133.
1912*
Wood
Rknton
Qirigoria
The
LocomotiveSuperin.tendent
( 120 )
1912.
WoodBenton J.
Origoria v.The
Locomotive
Superin-
tendent
of two Judges should be taken, and I direct that the case should bereferred to such a Bench accordingly.* After it has been decided,I will give formal judgment on the appeal.
March 14, 1912. Wood Renton J.—
In conformity with the order of His Lordship the Chief Justiceand Grenier J., I set. aside the order under appeal. The appellantis entitled to the costs of the appeal as well as those incurred in theDistrict Court.
Set aside.