1950 Present: Dias S.P.J., Nagalingam J. and GRATIAEN J.

YAKOOB BAI, Appellant, and SAMIMUTTU, Respondent

S. C. 381-D. C. Kandy, M. S. 1,972

Civil Procedure Code (Cap. 86)-Section 218 (j)-Execution of decree to pay money- Judgment-debtor, a Head Kangany-Seizure of his wages, dearness allowance-and pence money-Invalidity of such seizure-Meaning of "labourer "- Service Contracts Ordinance (Cap. 59), Section 2-Estate Labour (Indian) Ordinance (Cap. 112), Section 3.

In execution of a money decree entered, against the defendant, the plaintiff seized the wages, dearness allowance and pence money of the defendant. It was established that the defendant was a Head Kangany who did no manual or physical work of any kind and that his duty was to supervise labourers who did the manual work.

Held, (Gratiaen J. dissenting), that an estate kangany employed merely to supervise a number of estate labourers is a " labourer " within the meaning of section 218 (j) of the Civil Procedure Code and that the seizure was, therefore, not valid.

APPEAL from a judgment of the District Court, Kandy. This case was referred to a Bench of three Judges owing to; a difference of opinion between the two Judges before whom it had been previously listed.

H. W. Tambiah, with G. T. Samarawickreme and S. Sharvananda, for plaintiff appellant.-The question at issue is whether a kangany who merely supervises labourers and does no manual or physical work is himself a "labourer" within the meaning of section 218 (j) of the Civil Procedure Code. The state Labour Ordinance (Cap. 112) defines a "labourer" for the purpose of that Ordinance. This definition cannot be used for ascertaining the meaning of the word "labourer" as used in the Civil Procedure Code. One must look at section 218 of the Civil

Procedure Code itself. In Girigoris v. The Locomotive Superintendent [1 (1912) 15 N. L. R. 117.] it was held that the wages due to a mechanic employed by the Ceylon Government Railway was not exempt from seizure as he was not a " labourer ". In Reddiar v. Abdul Latiff [2 (1928) 30 N. L. R. 95.] it was held that a lorry driver was not a " labourer " within the meaning of section 218 (j). In Wickremetunge v. Perera [3 (1939) 41 N. L. R. 95.] a tramway conductor was held not to be a "labourer". A labourer is one who does manual work. In Nagasamy v. Hamid [4 (1942) 43 N. L. R. 525] it was held that the wages of a tindal is not liable to seizure. That case is distinguishable because the evidence showed that the substantial work done by the tindal was loading, unloading, and arranging cargo;. The question in the present case is whether a person who merely supervises labourers is himself a labourer. The trend of the cases is that manual work, that is, actual physical labour, is of the essence of the work of a "labourer". The burden was on the defendant to show that he came within the proviso to section 218, which should be strictly construed-Sarkar's Civil Procedure Code, Vol. Ill, p. 516. As to the meaning of the word " labourer " see Jechand Khusal v. Aba [ 5 (1880) 5 Bom. 132.]; Riley v. Warden [ 6 (1848) 2 Exch. 69 at p. 68.]; Gordon v. Jennings [ 7 (1882) 9 Q. B. D. 45.].

H. W. Jayewardene, for defendant respondent.-It is not correct to restrict the term "labourer" to those doing manual work only. Section 2 of the Service Contracts Ordinance (Cap. 59) defines the word "servant " to include " kanganies and other labourers". Section 3 of the state Labour Ordinance (Cap. 112) defines "labourer" to mean "any labourer and Kangany (commonly known as Indian coolies) whose name is borne on an estate register ". See Nicol v. Kandasami [ 8 (1906) 1 S. C. D. 38.] and Burrow's Words and Phrases, Vol. Ill, p. 202. Statutes in pari materia should be interpreted alike-Beal's Cardinal Rules of Interpretation, p. 402.

H. W. Tambiah, in reply.-The Service Contracts Ordinance and the Estate Labour Ordinance are no