153-NLR-NLR-V-39-IBRAHIM-SAIBO-et-al.-v.-PHILIPS.pdf
MOSELEY J.—Ibrahim Saibo v. Philips. ■
551
1937Present; Moseley J. and Fernando A.J.
IBRAHIM SAIBO et al. v. PHILIPS.
105—D. C. Kurunegala, 18,79
Execution—Gratuity to public officer—Not exempt from seizure—Civil ProcedureCode, s. 218 (g).
A retiring allowance paid to a public officer under clause 15 of theMinutes on Pensions is not exempt from seizure under section 218 <g) ofthe Civil Procedure Code.
^^PPEAL from an order of the District Judge of Kurunegala.
H. V. Perera, K.C. (with him Mahr.oof), for plaintiffs, appellants.
S. de Zoysa, for defendant, respondent.
Cur. adv. vult.
October 20, 1937. Moseley J.—
The appellants seized, under a writ of execution, certain monies allegedto belong to the respondent in the hands of the Controller of Financesand Supply. There is no evidence on record to indicate the nature ofthe monies seized, but throughout the proceedings it appears to havebeen taken for granted that they represent a retiring allowance grantedby the Governor as provided by section 15 of the Minutes on Pensions.That at least was the attitude taken up by Counsel for the respondent,and I do not think that any useful purpose would be served by remittingthe case for evidence on the point.
Following the seizure, the respondent moved that the monies bereleased on the ground that they were exempt from seizure under section218 of the Civil Procedure Code, paragraph (g) whereof provides that“ stipends allowed to naval, military, and civil pensioners of Government39/40
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MOSELEY J.—Ibrahim Saibo v. Philips.
and political pensions ” are not liable to seizure. The learned DistrictJudge was of opinion that the “ gratuity ” is not liable to seizure andordered its release. The appeal is against that order.
Now, it will be observed that the exempting provision upon which therespondent relies makes no express mention of a gratuity. This wordappears in the corresponding paragraph of section 266 of the Indian CivilProcedure Code of 1882, which served as a model for the Ceylon Codewhich made its appearance seven years later. While it must be concededthat the object of the paragraph is to protect pensions payable to Govern-ment officers, it would seem that the omission of the word “ gratuitymust have been deliberate. Counsel for the respondent argued that theword “ stipend ” is sufficiently comprehensive to include a payment of thisnature. In my view, the word is inseparable from the notion of periodical■payments and cannot therefore embrace a lump sum such as the paymentin the present case.
Counsel for the respondent further argued that the payment is in thenature of a gift, that the respondent had no disposing power over themonies, and that so far he has no seizable right, inasmuch as it is open tothe Governor to revoke the grant. He cited in support an Indian case in6 Allahabad p. 643. It seems to me, however, that in the present casethe Governor had approved the grant, the Legislature had voted themoney, and the latter was in the hands of the Controller to whom therespondent was in a position to give directions as to its payment either tohimself or to another party, e.g., his bankers.
On these grounds I would allow the appeal with costs, and declare that' the monies are liable to be seized.
Fernando A.J.—I agree.
Appeal allowed.