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Charles S. Brown Vs. Albert Donough Hanson - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 421 of 1931
Judge
Reported inAIR1933Bom185; (1933)35BOMLR360
AppellantCharles S. Brown
RespondentAlbert Donough Hanson
Excerpt:
.....passed by a lower court levying or refusing to levy attachment under order xxi, rule 48, of the civil procedure code, 1908, is one against which an appeal lies under section 47 of the code, and cannot therefore be revised under section 115 of the code.;the pay of a first class warrant officer to whom the army act applies is not attachable under a decree of a civil court to the extent contained under section 60 (1) (i) of the civil procedure code, 1908. - - we are told that it has since been dismissed for failure to pay process fees. since, in our opinion, the applicant has not adopted the proper remedy, and his application to us does not lie in the form in which it has been made, it is really unnecessary to go into the merits of the matter but, since we have heard a considerable..........judgment-debtor's salary was not attachable in this way. there was some correspondence between the learned subordinate judge and the military authorities, in the course of which arguments were advanced on either side, and in the end, the learned government pleader, poona, was instructed to appear for the judgment-debtor through the military authorities. the learned subordinate judge held that the judgment-debtor's pay was not attachable in the manner which had been had recourse to, and dismissed the application for execution, raised the attachment and directed the the plaintiff to refund to the applicant, or to deposit in court, the amounts of rs. 236-1-0 and rs. 247-1-0 which had been, as he held, wrongly paid to him, within a week from that date, and also ordered that a further amount.....
Judgment:

Murphy, J.

1. The point we have to decide is, in the first place, whether this revision application is one which can properly be made to this Court, and, secondly, whether the lower Court's order, which was one made in execution proceedings and holding that the pay of a First Class Warrant Officer to whom the Army Act applies is not attachable under a decree of the civil Court to the extent contained in Section 60 (1) (i) of the Civil Procedure Code, is correct or not.

2. Mr. Brown, the decree-holder, had a decree against the judgment-debtor for Rs. 4,680 and costs. He applied in execution of this decree, seeking to have a moiety of the defendant's pay attached by the issue of an order under Order XXI, Rule 48, of the Civil Procedure Code. An order accordingly issued and went apparently to the Controller of Military Accounts, Rawalpindi. That officer, in the first instance, sent a cheque for Rs. 236-1-0, but protested that the judgment-debtor's salary was not attachable in this way. There was some correspondence between the learned Subordinate Judge and the Military Authorities, in the course of which arguments were advanced on either side, and in the end, the learned Government Pleader, Poona, was instructed to appear for the judgment-debtor through the Military Authorities. The learned Subordinate Judge held that the judgment-debtor's pay was not attachable in the manner which had been had recourse to, and dismissed the application for execution, raised the attachment and directed the the plaintiff to refund to the applicant, or to deposit in Court, the amounts of Rs. 236-1-0 and Rs. 247-1-0 which had been, as he held, wrongly paid to him, within a week from that date, and also ordered that a further amount of Rs. 507-2-0 lying in Court should be returned to the judgment-debtor. The decree-holder was ordered to pay the latter's costs and to bear his own.

3. We have had two arguments addressed to us, and the first was on the question of whether this order of the learned Subordinate Judge is one that we can revise or not. It has been urged that there is an error of jurisdiction in that the learned Subordinate Judge was not competent to revise his order attaching the judgment-debtor's pay, and that he committed a material irregularity in allowing an unauthorized person to appear and contest the judgment-debtor's claim.

4. As to the first point we think that the learned Subordinate Judge did not review his first order. What happened was that the application for execution being made within a year of the decree, no notice to the judgment-debtor was necessary, and an order to execute the decree was made in the ordinary way ex parte. When the prohibitory order arrived at Rawalpindi and the Military Authorities deducted Rs. 236 from the judgment-debtor's pay, he protested to them, and the question seems to have been considered by them and his protest was forwarded through the usual official channels to the Subordinate Judge's Court, Poona. Ultimately, on the Subordinate Judge saying that the judgment-debtor should appear in person or by pleader, and not argue through the post, arrangements were made for his being properly represented before the learned Subordinate Judge by the Government Pleader, and arguments were heard and the matter was decided. As far as we can see, there was no question of an order being reviewed at all. An ex parte order to execute had been made, and in due course, there being an objection, this was heard and decided by the learned Subordinate Judge.

5. The second point is purely a technical one. It is, that the Military Authorities should not have been heard at all in the matter. But they were the persons to whom the prohibitory order went, and they were, in fact, representing the judgment-debtor, who, in the end, was properly and legally represented through them by the Government Pleader. We think that no material irregularity vitiated the proceedings so far. There remains to be considered, whether, on these facts, the application, which has been made to us, is competent or not. It appears that the applicant's legal advisers were in some doubt as to this point, for an appeal was simultaneously lodged in the District Court, Poona. We are told that it has since been dismissed for failure to pay process fees.

6. The proceedings before the learned Subordinate Judge were evidently proceedings in execution. The applicant was executing his decree, and the question to bo decided between the parties, who, as I have already said, were sufficiently represented as to the judgment-debtor's side, was, whether it was possible to execute this decree in the manner which has been adopted by the executing Court. This was primarily a question in execution and one which must be dealt with and decided under Section 47 of the Civil Procedure Code. This being so, the order made by the learned Subordinate Judge was one in which an appeal was competent, and therefore one which is excluded from the purview of this Court in revision by Section 115 of the Civil Procedure Code, which runs-

The High Court may call for the record of any case which has bean decided by any Court subordinate to such High Court and in which no appeal lies thereto.

Since, in our opinion, the applicant has not adopted the proper remedy, and his application to us does not lie in the form in which it has been made, it is really unnecessary to go into the merits of the matter But, since we have heard a considerable argument on the point, I think, I had better summarize our views shortly.

7. Mr. Coyajee's argument was that the judgment-debtor here is included in the special case under Section 60 (i), and that he comes within the definition of a 'public officer' as defined in Section 2(17) of the Code. Section 2, Clause (17)(c), says-

Every commissioned or gazetted officer in the military or naval forces of His Majesty, including his Majesty's Indian Marine Service, while serving under the Government;

The interpretation section of the Army Act, Section 190 (4), defines 'officer'-

The expression 'officer' means an officer commissioned or in pay as an officer in His Majesty's forces, or any arm, branch, or part thereof;...

It also includes certain other persons with whom we are not now concerned. Sub-section (6) defines the word 'soldier'-

The expression 'soldier' does not include an officer as defined by this Act, but, with the modifications in this Act contained in relation to warrant officers and noncommissioned officers, does include a warrant officer and a non-commissioned officer, and every person subject to military law during the time that ha is so subject ;

By the definition, the judgment-debtor being admittedly a first class warrant officer, is excluded from the expression 'officer' in the first definition, and the argument here has been that the expression 'in pay' in the definition of officer brings him in, as a Second Lieutenant's pay is KB. 425, while the judgment-debtor's pay is said to be Rs. 500. But, we do not think that this interpretation of the definition is open to us.

8. The second line of argument taken up is that the expression 'public officer' would include him, since, it appears, that he is a gazetted officer. Whether he is a gazetted officer or not, we are not certain. Apparently the appointment which he holds is of the character of appointments which are gazetted in the Gazette of India, and the probability is that he is a gazetted officer, though we have been unable to find a definition of that expression. But, we think that, in any case, his being a gazetted officer would not affect the question of his liability. The contention is worked out in the following way-

9. By Section 136 of the Army Act-

The pay of an officer or soldier of His Majesty's regular forces shall be paid without any deduction other than the deductions authorised by this or any other Act or by any Royal Warrant for the time being, or by any law passed by the Governor-General of India in Council.'

10. The Civil Procedure Code being a law passed by the Governor-General-in-Council, it is an authority by which deductions from the pay of an officer or soldier of His Majesty's regular forces may be made, and therefore that the order under Order XXI, Rule 48, is legal and effective. On the other hand, it has been contended that notwithstanding anything in Section 136, Section 144 of the Army Act bars any deductions being made in the pay of a soldier by proviso (1) to that section-

Any person having cause of action or suit against a soldier of the regular forces may notwithstanding anything in this section, after due notice in writing given to the soldier, or left at his last quarters, proceed in such action or suit to judgment, and have execution other than against the person, pay, arms, ammunition, equipments, regimental necessaries, or clothing of such soldier ;

This provision explicitly bars execution against a soldier. In the parallel case of Duckworth v. Duckworth I.L.R. (1918) Bom. 368: 21 Bom. L.R. 137 a similar question arose in respect of an Assistant Surgeon, who was a First Class Warrant Offieer, as in this case. The learned District Judge refused to make an order under Order XXI, Rule 48, and a bench of this Court held that his refusal was justified, on the ground that the judgment-debtor in that case fell within the definition of a soldier in the Army Act, and under Section 145 of that Act. Their Lordships' reasoning is summarized by Macleod J., who says (p. 375) :-

The respondent, an Assistant Surgeon in the Indian Medical Service, is a Gazetted Officer and therefore a public officer so that prima facie his pay and allowances would be liable to attachment to the extent of one half under Section 60 of the Civil Procedure Code. But he is also a First Class Warrant Officer and is therefore a soldier' as defined by Section 190 of the Army Act. Under Section 145(2) of that Act an order has been made by the Commandor-in Chief that a sum of Is. 6d. per diem, the maximum allowed, should be deducted from the respondent's pay in respect of the alimony and maintenance awarded to the appellant for herself and her three children by the District Judge, Ahmednagar. I agree with the learned Chief Justice that we must hold that in this case the Army Act prevails over the Civil Procedure Code.

Their Lordships' reasons for holding that the Army Act prevailed over the Civil Procedure Code are given in the learned Chief Justice's judgment in that case. Briefly put, they were that notwithstanding any specific provisions being repealed the terms of Section 4 of the Code had the same effect, and that the special law applicable to the then defendant overrode the provisions of the general law under Section 60 (i).

11. We do not think it necessary to refer to the other cases quoted in the course of the arguments. We can see no distinction between the bar contained in Section 145 (2) of the Army Act and that contained in Section 144, and we think that the facts are covered by the judgment of the Division Bench. We find against the applicant on the merits as well.

12. The rule will be discharged with costs.


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