Piragasam v. Mariamma
Present: Swan J.PIRAGASAM, Appellant, and MARIAMMA, RespondentS. C. 154—C. R. Jaffna, 2,164
Maintenance Ordinance—Arrears of maintenance—Deposited in Court—Liabilityto attachment—Civil Procedure Code, s. 218 (l).
Action—Thesavalamai—Action instituted by married woman—Subsequent grant ofdispensation to sue alone—Date of action.
Arrears of maintenance and costs paid into a Magistrate’s Court to the credit. of an applicant in proceedings instituted under the Maintenance Ordinanceare liable to be seized in execution of a decree obtained against her.
Where a married woman governed by Thesavalamai instituted an actionand her application for sanction of Court to sue alone, unassisted by her husband,was made with the presentation of the plaint—
Held, that the date of the institution of the action was the date on whichthe plaint was filed and not the date when the dispensation to sue alone wasgranted.
PPEAR from a judgment of the Court of Requests, Jaffna.
C. Chellappah, for the 2nd defendant appellant.*
J.St. George, for the plaintiff respondent.
Cur. adv. vult.
1 A. I. R. 1923 Cal. 557.2 A. I. R. 1928 Lah. 637.
® A. I. R. 1932 Lah. 615.
SWAN" J.—Piragasam v. Mariamma
December 9, 1952. Swast J.—
The appellant had sued the respondent in case No. 4,149 of the DistrictCourt of Jaffna and her action had been dismissed with costs. Inexecution of the decree for costs the respondent seized certain moniesdeposited to the credit of case No. 15,643 M. C. Jaffna. This was amaintenance case and the defendant who was the husband of the appellantand the sister of the respondent had deposited in Court two sums ofRs 63 • 65 and Rs. 60 which were due from him as costs and as arrearsof maintenance for two months respectively. Whether the husbandpaid the money into Court and not directly to the appellant in order tohelp his sister as against his wife does not affect the main question thatarises for consideration in this appeal. The appellant preferred a claimto the said sums of Rs. 63 ■ 65 and Rs. 60 and her claim was upheld.The respondent then brought this action under Section 247 of the CivilProcedure Code for a declaration that the monies seized were liable toseizure under heT decree. The learned Commissioner of Requests heldin her favour, and the present appeal is against that finding.
The same two objections that were taken in the lower Court have beenpressed in appeal, namely,
that the action was not instituted within fourteen days asrequired by Section 247.
that the monies paid to the credit of the appellant in themaintenance case were not liable to seizure.
As regards the first point it is conceded that this action was filedwithin fourteen days but the contention is that it was not properlyconstituted when the plaint was submitted to Court in that the respondent,who was governed by the law of Thesawalamai, was not assisted by herhusband and had not previously obtained the permission of Court toinstitute the action without such assistance.
It is common ground that a married woman governed by Thesawalamaicannot sue alone. She must either be assisted by her husband or obtainthe sanction of Court to sue alone. In this case the application for suchdispensation was made with the presentation of the plaint but it was notgranted till 10.4.1951, i.e., very much more than fourteen days after theclaim was upheld. Mr. Chellappah contends that 10.4.1951 oughtto be taken to be the date of institution. The learned Commissioner heldthat the order had retrospective effect and I have no hesitation in sayingthat he was correct. The institution and maintainability of an actionare two different things. When the action was instituted the wife hadno legal right to sue alone but once the Court dispensed with the presenceof the husband her act in suing alone was validated as from the date theplaint was filed.-
As regards the second point, namely, that the amounts deposited tothe credit of the appellant in the maintenance case were not liable toseizure the exemption is claimed under Section 218 (L) of the CivilProcedure Code which protects from seizure and sale in execution of amoney decree “ a right to future maintenance ”. Neither costs paidin a maintenance case nor arrears of maintenance already accrued and
Panniah v. SeUan
actually paid into Court can by aDy stretch of the imagination come unde1"the category of “ a right to future maintenance ” ; and as there is nothingin the Maintenance Ordinance to prevent such money from being seizedin execution on a writ against the person to whose credit it has beendeposited I fail to see how exemption from attachment can be claimed.Learned Counsel for the respondent cited two Indian cases in supportof his contention that arrears of maintenance were not exempt fromseizure and sale in execution, namely, the cases of Venlcat Rao GanpatRao Harne v. Zunkari Mar wadi 1 and Orissa Province v. Rangamma 2.But those are cases where the decree for maintenance was ordered in acivil suit and not in proceedings like the Maintenance Ordinance, andmay therefore be distinguished on that ground. However, the matterseems quite simple. So long as the Maintenance Ordinance affordsno protection with regard to money paid into a Magistrate’s Court to thecredit of an applicant on account of costs or of arrears of maintenance,such money is, in my opinion, liable to be attached on a decree against her.
The appeal is dismissed with costs.