082-NLR-NLR-V-36-MUTTIAH-CHETTIAR-v.-ABEYSINGHE.pdf
402
Muttiah Chettiar v. Abeysinghe.
1934Present: Dalton S.P.J. and Maartensz J.
MUTTIAH CHETTIAR v. ABEYSINGHE68-69—D. C. (Iwty.) Kandy, 43,956.
Public officer—Execution—Salary exempt from seizure—Municipal servantnot included in term—Civil Procedure Code s. 218 (h).
A Municipal servant is not a public officer within the meaning ofsection 218 (h) of the Civil Procedure Code.
A PPEAL from an order of the District Judge of Kandy.
N. E. Weerasooria (with him Kariapper), for plaintiff, appellant,in appeal No. 69.
No appearance for defendant, respondent
* 1 N. L. R. at.
403
DALTON S.P.J.—Muttiah Chettiar v. Abeysinghe.
October 22, 1934. Dalton S.P.J.—
Appeal No. 68 is by the defendant. He has not appeared on hisappeal, and we find, on reference to earlier proceedings in this matter,the appellant filed at the Registry, on June 19 last, a consent motionasking to withdraw this appeal. There was no appearance before theCourt when that application came up and hence no order was madethereon. The fact, however, that the defendant had withdrawn thisappeal no doubt explains his absence to-day, and the fact that he presum-ably does not wish to continue the appeal. Appeal No. 68 will thereforebe dismissed.
Appeal No. 69 by the plaintiff arises out of. the same proceedings.The question to be decided in respect of this matter is whether thelearned Judge was correct in holding that the term “ public officer orservant ” as used in section 218, sub-section (h), of the Civil ProcedureCode, includes Municipal officers.
The defendant is stated to be an officer in the employment of theMunicipal Council, Kandy, and his salary appears to have been attachedby the plaintiff in execution of a decree obtained by the plaintiff againstthe defendant.
The learned Judge has come to the conclusion that section 218, sub-section (h), applies to Municipal officers as well as to officers employedunder the Imperial Government or under the Government of Ceylon.I regret I am unable to agree with the learned Judge in his finding.He appears to hold that the definition of “ public officer ” in section 5of the Civil Procedure Code, includes other persons than those employedby or under the Imperial Government or the Government of Ceylon.He asks himself in the judgment, what is the ordinary and popularmeaning of the terms “ public officer ” and “ public servant ” ? Inreply to that question he says, the man in the street would normallyview such a person as the defendant, who is stated to be the Chief RevenueOfficer of the Municipal Council of Kandy, to be a public officer or apublic servant, and if so, then in view of the use of the word “ includes ”in the definition, such an officer is included in the term “ public officer
The learned Judge, however, has come to the conclusion that whereasthe term “ public officer ” in section 218 includes Municipal officerssuch as the defendant, nevertheless a Municipal officer is not a publicofficer within the meaning of section 461 of the Civil Procedure Code.
I entirely agree with the learned Judge in his conclusion that a Municipalofficer does not come within the term of “ public officer ” in section 461,but in view of the definition in section 5 of the Ordinance I feel myselfquite satisfied that neither is a Municipal officer a public officer withinthe meaning of the words as used in section 218.
The learned Judge was wrong, in my opinion, upon his constructionof section 218, sub-section (h), of the Civil Procedure Code, which doesnot in my opinion apply to this case.
In those circumstances the salary of the defendant is not exemptfrom seizure, and the appeal must therefore be allowed with costs.
Maabtensz J.—I agree.
Appeal allowed.