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The Post Master General and Gangaram Vs. Chenmal Mayachand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Applications Nos. 99 and 100 of 1940
Judge
Reported in(1941)43BOMLR758
AppellantThe Post Master General and Gangaram
RespondentChenmal Mayachand
Excerpt:
.....statutory provision or waive his right--voluntary transfer of part of salary by public servant--public policy--illegality of such transfer--transfer of property act (iv of 1882), section 6(f)--indian contract act (ix of 1872), section 23.;where an order is made against government or a public body, and the law imposes liability in case the order is not obeyed, it is open to government or the public body to move the court and contend that the order is not justified by the law, and the court has inherent power to consider such an application.;shamu patter v. abdul kadir ravuthan (1912) l.r. 39 i.a. 218, s.c. 14 bom. l.r. 1034, prem chand v. mulkh raj [1939] a.i.r. lah. 380, secy. of state v. ishar das [1936] a.i.r. lah. 761 and calcutta port commissioners v. bhubneshwar prasad [1988] 1..........was based being a voluntary transfer of a public officer's salary was also illegal and opposed to public policy under section 6(f) of the transfer of property act as well as under section 23 of the indian contract act. it was further urged that this right of exemption from attachment and the restriction against voluntary transfer cannot be waived by the judgment-debtor as the attachment as well as transfer were void on the ground of public policy. it was therefore prayed that the attachment of the portion of the judgment-debtor's salary be raised and the order under order xxi, rule 48, served on him should be cancelled.4. on august 2 of the same year the judgment-debtor also applied to the court to the same effect urging that the attachment was void under section 60 of the civil.....
Judgment:

Divatia, J.

1. These two revisional applications have been preferred against one judgment of the Small Causes Court Judge at Poona.

2. The facts leading to the applications are shortly these:--On July 25, 1935, the father of opponents Nos. 1 to 4 obtained a decree for Rs. 236 against one Gangaram, employed as a postman in Poona. In 1938 the decree-holder filed a darkhast and prayed for the judgment-debtor's arrest. After he was arrested there was a compromise between him and the decree-holder on January 7, 1939, whereby it was agreed that the judgment-debtor's officer should withhold every month Rs. 6 out of his salary of Rs. 41 per month until the decretal amount was satisfied. The judgment-creditor made an endorsement on the agreement to the effect that an order may be passed to with-hold Rs. 6 per month from his salary, and on the same day the learned Judge ordered the agreement to be recorded. The amount was not received by the judgment-creditor and he therefore filed darkhast No. 1251 of 1939 for executing the decree and prayed for attachment of the jugdment-debtor's salary to the extent of Rs. 258. On March 14, 1939, the Small Causes Court sent an order under Order XXI, Rule 48, to the Post Master General at Bombay asking him to send Rs. 6 every month to the Court in satisfaction of the decree. Thereafter on July 31, 1939, an application was made by the Post Master General to the Court out of which the first of the two revision petitions arises.

3. That application purports to have been made under Order XXI, Rule 58, of the Civil Procedure Code, on the ground that the order was illegal as no portion of the judgment-debtor's salary was liable to attachment under Section 60(i) of the Code of Civil Procedure. It was also urged that the agreement between the judgment-creditor and the judgment-debtor on which the order of. attachment was based being a voluntary transfer of a public officer's salary was also illegal and opposed to public policy under Section 6(f) of the Transfer of Property Act as well as under Section 23 of the Indian Contract Act. It was further urged that this right of exemption from attachment and the restriction against voluntary transfer cannot be waived by the judgment-debtor as the attachment as well as transfer were void on the ground of public policy. It was therefore prayed that the attachment of the portion of the judgment-debtor's salary be raised and the order under Order XXI, Rule 48, served on him should be cancelled.

4. On August 2 of the same year the judgment-debtor also applied to the Court to the same effect urging that the attachment was void under Section 60 of the Civil Procedure Code, and that the agreement entered into by him with the judgment-debtor was also void. The second revision petition arises out of this application.

5. Both these applications were heard together and the learned Judge framed issues as to whether the Post Master General was entitled to file the application, whether the judgment-debtor was entitled to waive the benefit under Section 60 of the Civil Procedure Code and whether the compromise by which the benefit had been waived was illegal and against public policy. He held that the Post Master General was not entitled to file the application, that the judgment-debtor was entitled to waive the benefit of Section 60 and that the compromise was neither illegal nor against public policy. For these reasons he rejected both the applications, and hence the Post Master General as well as the judgment-debtor have come to this Court in revision.

6. The main questions arising in both the applications are the same. With regard to the maintainability of the application by the Post Master General, the learned Judge held that it is not competent to the Post Master General to apply under Order XXI, Rule 58. That rule provides that where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection. Rule 59 provides that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. The learned Judge was of opinion that the Post Master General had no interest in the salary due to the judgment-debtor nor was he possessed of the same. Rule 60 says that the Court has to investigate as to whether for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment-debtor or of some person in trust for him and there too the learned Judge was of opinion that it cannot be said that the Post Master General came within its provisions. Now the Post Master General's application was to set aside the order of attachment which the learned Judge sent to him under Order XXI, Rule 48. Under that rule where the property to be attached was the salary or allowance of a public officer, the Court may order that the amount shall, subject to the provisions of Section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct, and that upon notice of such order the officer shall withhold and remit to the Court the amount due under the order. It is provided under Sub-Rule (3) that every order made under that rule shall bind the Government while the judgment-debtor was within the local limits to which the Civil Procedure Code for the time being extended and that the Government shall be liable for any sum paid in contravention of this rule. The application purports to have been made under Order XXI, Rule 58, and there is some force in the argument that he was not entitled to apply under the provisions of that rule read with Rules 59 and 60. But in my opinion there can be no doubt as to the Post Master General's right to apply to the Court if he thought that the order which he was asked to obey related to an attachment which is illegal and prohibited by statute. Order XXI, Rule 48, is expressly subject to the provisions of Section 60 and all that he was doing was to bring to the Court's notice the illegality of the order especially as the Government would be liable for any sum paid in contravention of this rule. That would not amount to sitting in judgment over, the order. It is only an application by a person who would be affected by the order that it should be vacated on the ground of illegality. The authority on that point which comes nearest to this case is in Calcutta Port Commissioners v. Bhubaneshwar Prasad [1938] 1 Cal. 433. There the judgment-debtor was a servant of the Commissioners for the Port of Calcutta and an order of attachment of his salary was sent to the Port Commissioners. They informed the Court that the wages of the judgment-debtor could not be attached as he was a seaman under the Indian Merchant Shipping Act. The judgment-debtor also applied in execution stating that his wages were not attachable. The Court, however, rejected that petition holding that the salary was not exempt from attachment and informed the Port Commissioners by a letter to send the attached sum to the Court. Thereupon the Port Commissioners applied to the High Court in revision to set aside that order. On behalf of the decree-holder an objection was taken to the locus standi of the Port Commissioners to apply to the Court for setting aside the attachment. It was held, however, that the Port Commissioners having received a direction from the Court in. accordance with the provisions of Order XXI, Rule 48, of the Civil Procedure Code, they were entitled to apply to the Court for setting aside the order of attachment. It was further held that under Sub-Rule (3) of that rule the Govern-merit would be held liable for any sum paid in contravention of the direction of the Court and that therefore it cannot be said that they had no grievance. Their application was, therefore, entertained by the Court and the preliminary objection overruled. On similar reasoning, the Post Master General in the present case is entitled to come to the Court because the direction under Order XXI, Rule 48, was also sent to him by the Court and he is affected by the order. I do not think, therefore, that the application of the Post Master General is not maintainable simply on the ground that it purports to be made under Order XXI, Rule 58, which in terms may not apply to the facts of the case. In fact in one decision reported in Secy. of State v. Ishar Das [1936] A.I.R. Lah. 761. the Court went to the length of holding that the Secretary of State's objection to the attachment of salary came under Order XXI, Rule 58. Even though one may not go so far, it cannot be said that the application is not maintainable. It can even be preferred under the inherent jurisdiction of the Court.

7. On the merits it is contended on behalf of the applicants that the order of the learned Judge was illegal inasmuch as he has misapplied the provisions of Section 60 of the Civil Procedure Code as well as Section 6(f) of the Transfer of Property Act. Under Section 60, proviso (i), the salary or allowance of a public officer or servant up to a certain limit shall not be liable to attachment or sale, and under Section 6(f) of the Transfer of Property Act the salary of a public officer cannot be transferred whether before or after it has become payable. It is common ground that a postman is a public servant.

8. Taking the provisions of the Transfer of Property Act first, the learned Judge was of opinion that it did not apply to the agreement in the present case because the agreement created only a charge on his salary and the charge did not amount to a transfer. It is, however, clear that the learned Judge has erred in construing the agreement between the parties. The agreement was that the decree-holder was to receive Rs. 6 per month from the judgment-debtor's salary from his superiors before it was paid to him and that an order should therefore be passed on the defendant's officer to withhold Rs. 6 from his pay until the balance was satisfied. It means that that much part of his salary was transferred to the decree-holder for his decretal debt until it was satisfied. It does not amount to creating a charge on a part of the salary but it purports to assign the same in favour of the decree-holder who can recover it from the postal authorities. The agreement therefore amounts to a voluntary transfer and the judgment-creditor's application is to attach Rs. 6 every month out of the salary so assigned. Thus the case falls both under Section 6(f) of the Transfer of Property Act and Section 60 of the Civil Procedure Code. It is obvious that the object of both these provisions of the prohibition of voluntary as well as involuntary transfers of the same kind of property must be the same. That object cannot be anything else except public policy or interest.

9. As observedl in Halsbury's Laws of England (Hailsham Edition), Vol. IV, para. 869, p. 471:

There are some choses in action which, have never been assignable; and broadly speaking, it may be said that the ground of their non-assignability is denoted by that comprehensive expression 'public policy'. Thus public policy forbids that effect should be given to assignments of pensions and salaries of public officers payable to them for the purpose of maintaining the dignity of their office, or to assure a due discharge of its duties.

10. The question then is whether it is open to a person to contract himself out of these provisions or to waive their benefit. It is no doubt a general rule that any one may renounce a law introduced for his own benefit. But that rule applies only to rights and benefits of a personal and private nature created under an agreement or granted by law. There is a clear distinction between a contractual or a statutory right created in favour of a person for his own benefit and a right which is created on the ground of public interest and policy. The rule of waiver cannot apply to a prohibition based on public policy. In Graham v. Ingleby [1848] 1 Exch. 651. Baron Alderson observes (p. 657):--The principle upon which cases proceed is well founded and it is this that an individual cannot waive a matter in which the public have an interest. This principle has been recently applied by the Privy Council in Gaekwar Baroda State Railway v. Hafiz Habib-ul Haq : (1938)40BOMLR811 , P.C. and by the Calcutta High Court in Joggeshwar Mahata v. Jhapal Santal I.L.R. (1923) Cal. 234. Our High Court has similarly applied it to the rights created in favour of agriculturists in Shankarlal v. Raghunathdas : AIR1935Bom233 .

11. The learned advocate for the opponent has relied on a decision in Shivayagappa v. Govindappa I.L.R. (1913) 37 Bom. 614 F.B. It was held there that a compromise decree in a suit under the Dekkhan Agriculturists' Relief Act was not bad in law because it was not made in compliance with the special provisions of Section 15-B of that Act. That decision has, however, no application to the facts of the present case,. The agreement there was in substitution of the provisions of Section 15-B and it was, held that the decree based on the agreement was not unlawful or contrary to public policy. It was further held that that section would apply only where the Court in its discretion directed that the amount due was payable by instalments and that it should not be applied by analogy whenever a compromise was entered into.

12. The learned advocate for the opponents further relied upon two recent decisions of the Lahore High Court. The first one is in Jagan Nath v. Allah Dad [1939] A.I.R. Lah. 539. There an employee of the North Western Railway had consented to a compromise decree in favour of his creditor agreeing to pay the decretal amount by monthly instalments. There being a default in payment of the instalments the decree-holder took out execution and attached the judgment-debtor's salary. Although the judgment is not quite clear, presumably the decree-holder was, under the compromise, given the right to satisfy the decree from the judgment-debtor's salary. It was held that the latter must be deemed to have contracted himself out of any benefit that Section 60 conferred upon him in the matter of the attachment of his salary and that it was open to him to waive that benefit. Reliance was placed upon a former decision, in Chittar Mal v. Mt. Ram Devi [1935] A.I.R. Lah. 164. in which it was held that there was nothing in Section 60 to prevent an agriculturist voluntarily selling or otherwise alienating his house. Applying that; authority by analogy it was held that a public officer can also enter into a compromise on similar terms with regard to the attachment of his salary. The effect of Section 6(f) of the Transfer of Property Act was not considered. With respect, the decision is, in my opinion, wrong even under Section 60 of the Civil Procedure Code. As I have shown above, the compromise being opposed to public policy, a decree giving effect to it is also vitiated and cannot be executed by attachment of the salary.

13. The second case is reported in Rajindar Kumar v. Chetan Lal [1940] A.I.R. Lah. 65. That was a case of a servant in the postal department. There again there was an award decree between the judgment-creditor and the postal servant. The question for decision was whether the provisions of Section 60 of the Civil Procedure Code could be waived by the judgment-debtor. It was held that that section was a prohibition only against forcible attachment and there was nothing in law to prevent a judgment-debtor from agreeing to the attachment of half of the salary even though it is exempt from attachment. Here also the provisions of Section 6(f) were not considered. The same criticism would apply to this decision as to the former decision in Jagan Nath v. Allah Dad. In my opinion no distinction could be made between a forcible attachment under Section 60 of the Civil Procedure Code and a voluntary transfer under Section 6 of the Transfer of Property Act, if both these provisions are governed by public policy.

14. As a result, therefore, it must be held that the attachment of the salary as well as the transfer thereof are illegal and opposed to public policy. The decision of the lower Court is reversed and the rules in both the applications are made absolute with costs. Rule made absolute with costs in the stay petition also.

Broomfield, J.

15. The principal point in these revision applications is whether a public officer, whose salary is exempt from attachment under Section 60(i) of the Civil Procedure Code, can contract himself out of this statutory provision. The public officer in question is a postman or postal peon now drawing a salary of Rs. 41. A creditor got a decree against him for Rs. 236 and had him arrested, and in order to escape from, arrest he agreed with his creditor that a sum of Rs. 6 per mensem should be deducted from his pay until the debt was paid. The executing Court acting on this agreement made an order under Order XXI, Rule 48. This order was objected to both by the Post Master. General and by the judgment-debtor, but the executing Court, the learned Small Causes Court Judge, Poona, overruled the objections, and revision applications have been made to this Court by both the Post Master General and the judgment-debtor.

16. Order XXI, Rule 48, under which the salary of a public officer may be attached is expressly made subject to Section 60. The learned Small Causes Court Judge took the view that the exemption can be waived, relying on the principle which is expressed in the maxim quilibet potest renunciare juri pro se introducto. But to this principle there are many exceptions. If the privilege is purely personal, if the interests of third parties are not affected and in particular if there is no question of public interests or policy, no doubt the maxim is good law. But where a privilege is conferred for reasons of public policy, it is very well settled that it cannot be waived. My learned brother has referred to authorities on that point and I shall only mention the dictum of Lord Westbury cited by Mr. Justice Mookerjee in Ashutosh Sikdar v. Behari Lal Kirtania I.L.R. (1907) Cal. 61 F.B. He said that the words 'pro se' were introduced into the maxim, 'to show that no man can renounce a right of which his duty to the public and the claims of society forbid the renunciation.'

17. The learned Judge below was apparently of opinion that no question of public policy was involved. But that view is obviously untenable. No other reason for the enactment of Section 6(f) of the Transfer of Property Act can be suggested except public policy, and, as Sir Dinshah Mulla has pointed out in his commentary on the Act, it is opposed to public policy that the public officer should transfer the salary of his office, for the salary is given for the purpose of upholding its dignity and the performance 6f its duties.

18. On behalf of the opponent it was argued that in this particular case the agreement need not be regarded as contrary to public policy, because the amount to be withheld was only Rs. 6 out of a salary of Rs. 41. But the answer to that is that the legislature has fixed the amount of salary which is to be exempted in the interests of public policy and it is not for the Courts to say that it is sufficient to reserve a lesser amount.

19. Although the learned Small Causes Court Judge seems to have taken the other view, it seems to me to be beyond dispute that this agreement was obnoxious to the provisions of Section 6(f) of the Transfer of Property Act. It was to all intents and purposes a transfer of the judgment-debtor's salary as it fell due in the future. The agreement must also be regarded as void under Section 23 of the Indian Contract Act.

20. We were referred to certain cases, decisions of single Judges in which it has been held that the provisions of Section 60 of the Civil Procedure Code can be waived. But there was no discussion there of Sectin 6 of the Transfer of Property Act, and with all deference to the learned Judges who decided those cases I am not prepared to follow; them.

21. The other point which has been argued is whether the Post Master General has any locus standi to contest the order of attachment. The learned Small Causes Court Judge held that he had not, relying on Rule 59 of Order XXI. There are no doubt difficulties in the way of holding that the Post Master General's objection came within the terms of Rule 58 under which it purported to be made. The difficulty seems to me to lie not so much in the terms of Rule 59, which are sufficiently general, but in the fact that the subsequent Rules 60 and 61 suggest that the sort of objection contemplated in these rules is an objection by a person claiming some interest in the property for himself and adversely to the judgment-debtor. However this may be, similar applications have been held to come under Rule 58, e.g. in the case to which my learned brother has referred, Secy. of State v. Ishar Das [1936] A.I.R. Lah. 761. and in Calcutta Port Commissioners v. Bhubaneshwar Prasad [1938] 1 Cal. 433. it was held that a public body was entitled to appear and object to an order under Order XXI, Rule 48, in respect of one of their employees. The reason given for this view was that they would be liable for any sum attached in contravention of the direction of the Court by reason of Sub-Rule (3) of Rule 48. So that it could not be said that they had no grievance and must be held that they had a locus standi to make the application.

22. In Shamu Patter v. Abdul Kadir Ravuthan their Lordships of the Privy Council said that even in the absence of an express provision in the Code 'every Court trying civil causes has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties.' Where an order is made against Government or a public body, and when the law imposes liability in case the order is not obeyed, as is the position here, it would in my opinion be unreasonable and unjust to hold that it is not open to Government or to the public body as the case may be to move the Court and contend that the order is not justified by the law, and there must I think be inherent power in the Court to consider such an application. This view has also been taken in Prem Chand v. Mulkh Raj (1939] A.I.R. Lah. 380.

23. We have only been referred to one case in which it has been held that the disbursing authority in a case of this kind is not competent to apply to the Court, and that is a decision of Mr. Justice Wassoodew in Governor General in Council v. Magniram Mayachand (1938) Civ. Rev. Application No. 372 of 1937, decided by Wassoodew J., on March 7, 1938, (Unrep). The facts there were not the same. The Postal Officer to whom an order under Order XXI, Rule 48, had been sent refused to obey the order on the ground that it was contrary to Section 60. The decree-holder made Government a party and after hearing the parties it was directed that the prohibitory order should be returned to the Postal Department for necessary action. Government then filed a revision application. Mr. Justice Wassoodew said that having regard to the provisions of Order XXI, Rule 48, the officer of the Postal Department could not sit in judgment over the order of the executing Court and he also said that the Court alone has to decide whether the salary is attachable or not and it is principally a question between the judgment-debtor and the decree-holder with which the officer is not concerned. With all deference to the learned Judge, we consider that, though the Court's order must of course be obeyed and there is no question of the officer to whom it is sent sitting in judgment over it, there is nothing in law which prevents him protesting against the validity of the order. There can be no reason why an officer of Government should be in a worse position in that respect than an ordinary party. We are, moreover, unable to agree with the dictum of the learned Judge that in cases like this there is nothing but a question between the judgment-debtor and the decree-holder with which Government is not concerned. If, as we think, questions of public) policy are involved, Government is undoubtedly concerned in the matter. The question cannot be regarded as purely academic since the public officer whose pay is attached or sought to be attached may not always be willing to make an application himself, and if no application could be made by Government or the public body, the provisions of Section 60 of the Code and of Section 6 of the Transfer of Property Act might become a dead letter.

24. I agree, therefore, with the order proposed by my learned brother.


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