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Velchand Chhaganlal Vs. Lieut. E. Bourchier - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 788 of 1911
Judge
Reported in(1912)14BOMLR777; 13Ind.Cas.853
AppellantVelchand Chhaganlal
RespondentLieut. E. Bourchier
Excerpt:
civil procedure code (sic) army act (st. 44 & 45 vic. clause 58), section 136--decree--execution--attachment--salary of an officer in the british regular forces--salary could not be attached.; the salary drawn by an officer in the british regular army is not liable to be attached under section 60 of the civil procedure code, 1908. - - desai who has put the case before us very clearly and there is no doubt upon the law that the lower courts have taken the correct view......declares that it does not affect the provisions of the army act.10. that being so, it seems to me that there is no law of the governor-general-in-council whereby this officer's salary is liable to attachment.
Judgment:

Chandavarkar, Acting C.J.

1. We are indebted to Mr. Shah for having undertaken to argue this case as amicus curice for the respondent but we do not wish to call upon him to reply to Mr. Desai who has put the case before us very clearly and there is no doubt upon the law that the lower Courts have taken the correct view.

2. The whole question depends upon the construction of the (3) ILR (1911) All. 529. words of Clause 2 (b) of Section 60, Civil Procedure Code, viz., 'Nothing in this section shall be deemed to affect the provisions of the Array Act or of any similar law for the time being in force.'

3. Section 136 of the Statute 44 & 45 Vie. Clause 58, amended in 1895, provides that the salary of an Officer in the British Army serving in India shall be paid to him without deduction unless the Legislature in India has directed to the contrary in that behalf.

4. The question, therefore, is whether there is any such direction in any Act of the Indian Legislature. The only law bearing upon that is Clause 2 (b) of Section 60 to which I have referred.

5. What is the meaning of the words 'to affect the provisions of the Army Act' in that clause They mean that Section 60 shall not have any effect, it shall not encroach upon the provisions of the Army Act. What the Army Act directs is that the salary of the officer in question should be paid to him without any deduction unless the law in India has said expressly or by necessary implication that there shall be such deduction. What the Indian Enactment says is that it will not 'affect the provisions of the Army Act', that is to say, it leaves the provisions of the Army Act untouched.

6. Mr. Desai for the creditor argues that an officer of the kind we have in this case is a public officer within the meaning of the Army Act as defined in Section 2, Clause (17), of the Civil Procedure Code, but we cannot reach that stage unless we first find that Clause 2 (b) of Section 60 paves the way for it. It is that which is the bar to our considering the further question whether the officer falls within the definition of 'public officer'. The decision of the Allahabad High Court in Colonel Lecky v. Bank of Upper India, Ltd. is to the same effect.

7. For these reasons the decree must be confirmed.

Batchelor, J.

8. I am of the same opinion. The respondent in this case is an officer of the Second Battalion of the North Staffordshire Regiment, that is to say, he is an officer of the Regular Forces.

9. Now under the Army Act, Section 136, the salary of such an officer is not liable to attachment except by virtue of some law made by the Governor-General-in-Council in that behalf. But the only law made by the Governor-General-in-Council in that behalf is admittedly Section 60 of the Civil Procedure Code, and that section in its explanation, Clause 2(b) expressly declares that it does not affect the provisions of the Army Act.

10. That being so, it seems to me that there is no law of the Governor-General-in-Council whereby this officer's salary is liable to attachment.


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