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King King and Co. Vs. Major Francis D. Davidson - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 303 of 1911
Judge
Reported inAIR1914Bom137; (1914)16BOMLR233
AppellantKing King and Co.
RespondentMajor Francis D. Davidson
Excerpt:
civil procedure code (act v of 1908), section 60-attachment-salary-officer of indian army-money attached and distributed among decree-holders can-not be refunded.;the salary drawn by an officer in the indian army is not liable to be attached in execution of a decree, under section 60 of the civil procedure code, 1908.;where, however, the salary of such an officer has been attached and the realization distributed among the decree-holders, the latter cannot be ordered to refund the money so paid to them. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b...........to this court for execution, and applied for rateable distribution between themselves and messrs. king, king & co., under section 73 of the civil procedure code. rs. 2384-2-11 paid to the sheriff as aforesaid have been rateably distributed between the two execution plaintiffs. there is now in the hands of the sheriff the further sum of rs. 2979-12-7, which in the ordinary course would be distributed in like manner. but on the 20th of january 1914 the defendant took out a summons in the poona suit no. 290 of 1907, calling upon the plaintiffs to show cause why the attachment levied by them on the salary of the defendant should not be raised and why the sum of rs. 2384-2-11 recovered by the plaintiffs under such attachment should not be refunded. on the 24th of january the defendant took.....
Judgment:

Macleod, J.

1. Messrs. King King & Co. obtained a decree against Major Davidson, then a Captain in the Indian Army, in Suit No. 303 of 1911 on the 25th of July 1911 for a sum of Rs. 4,454-15-3 and costs and further interest. In execution of the said decree the plaintiffs attached a moiety of defendant's pay, and in pursuance of such attachment the Deputy Controller of Military Accounts remitted to the Sheriff such moiety. Thereafter Amarchand Hajarimal & Co., who had obtained a decree against the same defendant in Suit No. 290 of 1907 in the Court of the First Class Subordinate Judge at Poona, transmitted their decree to this Court for execution, and applied for rateable distribution between themselves and Messrs. King, King & Co., under Section 73 of the Civil Procedure Code. Rs. 2384-2-11 paid to the Sheriff as aforesaid have been rateably distributed between the two execution plaintiffs. There is now in the hands of the Sheriff the further sum of Rs. 2979-12-7, which in the ordinary course would be distributed in like manner. But on the 20th of January 1914 the defendant took out a summons in the Poona Suit No. 290 of 1907, calling upon the plaintiffs to show cause why the attachment levied by them on the salary of the defendant should not be raised and why the sum of Rs. 2384-2-11 recovered by the plaintiffs under such attachment should not be refunded. On the 24th of January the defendant took out a similar summons against the plaintiffs in Suit No. 303 of 1911. I adjourned the summonses into Court, and they were argued before me on the 2nd of February.

2. In the face of the decision of a Bench of this Court in Vel-chand Chhaganlal v. Bourchieri I.L.R. (1912) 37 Bom. 26, 14 Bom. L.R. 777, counsel for the plaintiffs were unable to contend that the attachment on the defendant's pay could be continued. In that case the defendant was an Officer in a British Regiment but the reasons given by the learned Judges for their decision apply equally to an officer in the Indian Army. In Calcutta Trades Association v. Ryland I.L.R. (1896) 24 Cal. 102 and in Watson v. Cloyd I.L.R. (1901) 25 Mad, 402, the defendants were Officers of the Indian Staff Corps, and in both cases it was held that there was a distinction between an Officer of the Indian Staff Corps and an Officer of the Regular Forces. But no reference was made to Section 190, Sub-section 8, of the Army Act of 1881, from which it is clear that Officers of the Indian Staff Corps or the Indian King Army are also Officers of His Majesty's Regular Forces. Nor King & Co. in either of those cases was any reference made to Sub-section 2, Sub-clause (b), of Section 266 of the Civil Procedure Code of 1882. This has been reproduced in Section 60 of the Code of 1908 which was Macleod J, held in Velchand Chhaganlal v. Bourchier I.L.R. (1912) 37 Bom. 26: 14 Bom. L.R. 777 to be a bar to the Court considering whether an officer in the Army fell within the (definition of ' public officer' given in the Civil Procedure Code. Therefore, there can be no doubt that the defendant is entitled to receive his pay without any deduction, and that the attachment levied by the plaintiffs in Suit No. 303 of 1911 must be raised. The Sheriff must also pay to the defendant the sum of Rs. 2976-12-7 which he realized under the attachment and which has not yet been distributed between the plaintiffs.

3. The question whether the plaintiffs can be ordered to refund to the defendant what has already been paid to them by the Sheriff under the attachment depends on whether the money so received by them can be considered as having been paid by the defendant under coercion, or money voluntarily paid under a mistake of fact. It was admitted by the defendant's counsel that he had had no objection to Messrs. King, King & Co. receiving the moiety of his pay under the attachment levied by them. It was only when he discovered that the plaintiffs in the Poona suit were obtaining a share in that moiety that he decided to question the validity of the attachment. It must be taken, therefore, that the money paid out by the Sheriff was not money paid under coercion. Nor was it money paid under a mistake of fact. It was paid because the defendant did not choose to apply to the Court to raise the attachment. If there was any mistake in the matter it was one of law, that is to say, the defendant must be taken as having under mistake considered that the attachment on his pay was permitted by law. Though it is also possible that there was no mistake of any sort, the defendant preferring that Messrs. King, King & Co. should be paid their debt in this manner. Therefore, in my opinion, defendant is not entitled to a refund of what has already been paid out to the execution plaintiffs.

4. It was suggested in argument that the defendant might be stopped from claiming a refund; and it is quite possible that the plaintiffs may have acted upon the belief arising from the King defendant making no attempt to dispute the attachment that he acquiesced in it. But as far as this case is concerned, there is no evidence on which a case of estoppel could be founded.


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