Mello v Shah (C.A. 36/1932.) [1932] EACA 31 (1 January 1932)

### APPELLATE CIVIL.

### Before THOMAS, J.

## M. P. DE MELLO (Appellant) (Original Defendant)

# CHHAGANLAL CHUNILAL SHAH (Respondent) (Original Plaintiff).

### C. A. $36/1932$ .

Civil Procedure Rules, Order XIX, Rule 45-Attachment of salary—Civil Procedure Ordinance, section 34—Power of Court to determine matters arising between parties—Section 47—Avoidance of private alienation of property attached.

Held (19-12-32): - That an employer on whom a notice of attachment of a servant's wages has been served is entitled to claim that he has a lien on such wages. The rights of an attaching creditor and an employer should be dealt with in the execution proceedings and not by separate suit.

Hopley for Appellant.

Mangat for Respondent.

The respondent sued one, B. de Souza, and obtained judgment against him for Sh. 199/33. On an application for execution by attachment of the said B. de Souza's salary an Order issued under Order XIX, Rule 45, on Form No. 18 D, requiring the employer (present appellant) to withhold the amount due in monthly instalments of one-half of the said B. de Souza's salary. The employer did not give effect to this Order, his reply being that his employee was working off an advance which he had made him to cover the expenses of the employee's return from India.

JUDGMENT.—This is an appeal from the judgment of the Magistrate sitting in the Magistrate's Court, Nairobi, in Civil Case No. 2142 of 1932.

In that suit the sum of Sh. 195 was claimed by the present respondent from the present appellant, M. P. de Mello, as being half the wages of a servant, one B. de Souza, not paid into Court by him under an Order of attachment, dated the 26th of March, 1932.

M. P. de Mello called evidence to show that advances had been made to B. de Souza to enable him to return from India, etc., and that he was entitled to make deductions from the wages of B. de Souza until he had recouped himself these amounts.

The Magistrate did not accept the explanations of M. P. de Mello, and gave judgment for the present respondent (Chaganla! Chunilal Shah).

From that judgment M. P. de Mello appeals.

In the memorandum of appeal the second ground is that the learned Magistrate erred in finding (if he did so find) that the plaintiff adopted the correct procedure in the framing and bringing of the action.

I will deal with this ground of appeal first of all.

As has been stated the appellant had been served with an attachment Order under XIX, Rule 45. He made a return that : he had no effects and the state of affairs was explained to the Magistrate who thereupon gave the following ruling: "If the employer M. P. de Mello) does not pay into Court the amount of which attachment has been ordered on the grounds that the money is not due, I do not think that Order XIX, Rule 45, empowers the Court to make an Order of attachment against the employer. The judgment-creditor must bring a fresh action against the employer to establish his right." There has been no appeal from that ruling, but that does not give a jurisdiction which does not otherwise exist. Powers relative to execution and attachment of salaries are especially given to the Courts in section 34 and section 44 of the Civil Procedure Ordinance. The machinery for giving effect to these powers is contained in the " Rules.

Order XIX, Rule 45, provides for the attachment of salaries. It is somewhat wider than the corresponding Order XXI, Rule 48. of the Indian Code of Civil Procedure (which, of course, does not apply to this Colony) inasmuch as it deals with the salary of any person privately employed.

Order XIX, Rule 45 (1), provides for the making of the Order, seemingly ex parte. Sub-rule 2 provides for the making. of a return where an order for attachment has already been made in respect of the same salary. Sub-rule 3 provides that the employer ... "shall be liable for any sum paid in contravention of this Rule." The attachment Order made in this case required the appellant to withhold the sum of Sh. 199/33 in monthly instalments of one-half of the salary and to remit the said sum or monthly instalments to this Court.

Since no date has been given as to the first payment, presumably the Order took effect forthwith, and the withholding should have been in respect of the first payment of wages or salary subsequent to the date of the Order.

Although the wording of Order XIX, Rule 45, is imperative it is also empowering on the employer to withhold the amounts stated. In the first place the Order is made ex parte; but there would seem to be no reason why the person on whom the Order has been made should not appear before the Magistrate and state his reasons why he is unable to execute the Order. Where there is another attachment in existence it is obligatory on the employer to make a return. But there is nothing in the Order to over-ride existing equities between the employer and employed at the date of the ex parts Order of attachment.

On such appearance of the employer there is no reason why these matters should not be gone into by the Magistrate, and, after full consideration, why he should not make such Order as he considers to be right.

I can see no objection to a servant working at a reduced salary in order to work off an indebtedness to his employer.

I can see no objection to an advance being made by an employer on account of wages to be subsequently earned. Sometimes, as in this case, such advances would be for the material advantage of the employed and also possibly eventually of his creditors. I do not consider that it is the intention of the Rule to deprive an employer of his rights to recoup himself, or to give precedence to a judgment-creditor over the equities existing between the master and servant prior to the making of the Order. After the Order has been finally made then the employer shall be liable for any sum paid in contravention of Rule 45 of Order XIX.

Those words, in my opinion, mean that he shall be liable in the execution, and that an Order may be made against him to pay the sum ordered in the execution proceedings. These words do not give the right to bring a separate action and, in my opinion, tend to take away any right there may be to bring a separate action, since the object of the Rule is to save expense and to avoid multiplicity of actions. Even if such an action as has been taken in this case were permissible then, of course. it would be subject to the equities between the parties. The defendant (present appellant) showed that sums amounting to Sh. 252 had been advanced on his behalf to the servant. He produced a promissory note and an authority both dated priorto the attachment Order. The Magistrate does not say that he disbelieved M. P. de Mello. I see no reason why he should not have been believed. Such transactions are unfortunately only too frequent in this Colony. Therefore on the evidence given in the case the defendant would have been entitled to set off the sums due to him by the servant as against sums due by him to the servant. This having been done there would be nothing due and therefore there should have been judgment for the defendant with costs.

But I am of the opinion that the proper procedure has not been followed. No action should have been brought. The special procedure provided by the Civil Procedure Ordinance should have

been followed. The appeal must therefore be allowed with costs. The judgment given by the Magistrate must be set aside and judgment entered for the defendant with costs.

This judgment will not affect the rights of the respondent to continue or to start fresh proceedings for attachment in the. Magistrate's Court. On such proceedings it will be open to the present appellant to show cause why the Order should be modified or should be made to take effect from a future date. If there should be non-compliance with the Order after it has been finally made then the present appellant will be liable and can be made to pay, not by a fresh action, but in the execution proceedings.