110-NLR-NLR-V-44-MOHAMED-Appellant-and-WALKER-GREIG-Respondent.pdf
MOSELEY A.C.J.—Mohamed and Walker & Greig.
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1943Moseley A.C.J. and Jayetileke J.
MOHAMED, Appellant, and WALKER & GREIG, Respondent.
120—D. C. Colombo, 10,556.
Public servant—Kathi appointed under the Muslim Marriage arid DivorceRegistration Ordinance—Salary exempt from seizure—Civil ProcedureCode, s. 218 (h).
A Kathi appointed under the Muslim Marriage and Divorce Registra-tion Ordinance is a public servant within the meaning of section 218 (h.)of the Civil Procedure Code and his salary is exempt from seizure.
PPEAL from an order of the District Judge of Colombo.
P.Navaratnarajah, for the defendant, appellant.
A. H. C. de Silva (with him S. J. Kadirgamar), for the plaintiffrespondent.
s
Cur. adv. vult.
March 17, 1943. Moseley A.C.J.—
The respondent having a decree against the appellant obtained aprohibitory notice under section 229 of the . Civil Procedure Code inrespect of fees due to the appellant by virtue of his appointment as aKathi under the Muslim Marriage and Divorce Registration Ordinance(Chapter 99). The appellant applied to the District Court for recall ofthe notice on the ground that the said fees were exempt from seizure undersection 218 (h) of the Civil Procedure Code. The learned District Judgeheld the appellant is a public servant but that^the fees receivable by himdo not come within the meaning of the word “ salary ” in the section,and are therefore not exempt from seizure.
The two points for decision are—
Is the appellant a public servant; and if so,
Are his emoluments as such, “ salary ” within the meaning of the
aforesaid section ?
Section 5 of the Civil Procedure Code defines “ public officer ” as -including“ all officers or servants employed in this. Colony by or under the ImperialGovernment or the Government of Ceylon. ” Is the appellant employedby the Government of Ceylon ? Under section 4 (1) of Capter 99 his
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454MOSELEY A.C.J.—Mohamed and Walker & Greig.
appointment as Kathi is made by the Governor; his appointment isgazetted; the Ordinance prescribes his duties and it is provided byregulation 43 of the regulations made under the Ordinance that he shallbe paid fees at a certain rate. Added to this it appears to be acceptedthat he has an office, a clerk and fixed hours of work. All these elementsseem to me to point irresistibly to the fact that he is a public servant.
I arrive at this conclusion without having regard to the case of Bansi Laiand others v. Mohamed Hafix1. There it was held that an advocate whowas engaged to conduct a case on behalf of Government was a publicofficer on the ground that he was remunerated by fees for the performanceof a public duty and therefore came within the definition of “publicOfficer ” contained in section 2 of the Indian Civil Procedure Code.Since that definition differs from its counterpart in the Ceylon Code thecase, in this respect, is not helpful. It is however, in my opinion un-necessary to look for authority outside the local definition.which I haveset out above, and which appears sufficiently comprehensive to embracesuch an appointment. Counsel for the respondent contended that,.inasmuch as the work done by the appellant was not of a continuousnature, he could not be regarded as a public servant. It may well bethat in some districts a Kathi’s work is of a desultory nature ; in othersit may be continuous. To draw a distinction between one Kathi andanother would only be to complicate the matter further. ^ In my viewtherefore, the learned District Judge was right in holding that appellantis a public officer.
The remaining question is whether the fees received by him are“ salary ” within the meaning of section 218 (h). The learned DistrictJudge, in answering the question in the negative, relied upon a judgmentof Garvin S.P.J., in Goul v. Concecion2 in which the learned Judge usedthese words : —
“As a mere matter of interpretation of this section it would seem
that this word “ salary ” connotes that sum of. money which a man
receives regularly every month in respect of his: fixed appointment.”
The learned District Judge held himself bound to follow that authority.The case, however, was one in which the maker of a promissory note pleadedthe benefit of the Public Servants’ Liabilities Ordinance (Chapter 88),section 2 (2) of which takes out of the scope of the Ordinance a publicofficer who is in receipt of a salary in regard to his fixed appointment ofmore than three hundred rupees a month. The defendant in that casewas in receipt of a salary of Rs. 3,500 a year, but the plaintiff allegedthat he received in addition certain allowances which brought his salaryabove Rs. 300 a month. It does not seem to me very difficult to followthe reasoning of Garvin S.P.J. which led him to hold that for the purposeof interpretation of section 2 (2) the word “ salary ” meant the sum ofmoney which the man received regularly every month. The case to meis clearly distinguishable from the present one in which the only remuner-ation received by the appellant was the amount of fees received in respectof certain of his duties. In the course of his judgment in the Patna case towhich reference has been made above, Mohamed Noor J. after considering1 (1939) -4.1. B. Patna 77.5 36 N. L. B. 73.
WIJEYEWAHDANE J.—Wijeysekere and Wijeysuriya.455
the definition of “ salary ” in Stroud’s Judicial Dictionary, found nothingwhich restricted the word to an emolument which is paid monthly. Itmay be that in the present case there may be months in which theappellant receives no fees. In my view, nevertheless, for the months inwhich he is more fortunate the fees which he receives are the salary of hispost. He is therefore entitled to the benefit of section 218 (h) of theCivil Procedure Code.
I would allow the appeal with costs here and in the District Court.The order of the District Court is set aside and the Fiscal is directed torecall the prohibitory notice in respect of the fees payable to theappellant.
Jayetileke J.—I agree.
Appeal allowed. –