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Norbert EdwIn Nugent Vs. Marjory Julia Nugent - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All129
AppellantNorbert EdwIn Nugent
RespondentMarjory Julia Nugent
Excerpt:
- - in these circumstances i do not consider it expedient to express any opinion upon the matter which clearly raises questions of importance. 5. clearly therefore by the provisions of section 120 the applicant's pay is exempt from attachment in execution of a civil court decree. clearly it would be in the highest degree inexpedient if in the matter of deductions from the pay of soldiers, the military authorities were made subject to the orders of a civil court. having regard to the history of the provision and to the fact that the government of india act purports to do no more than consolidate the existing law, asiatic officers, soldiers and followers are clearly intended and only such are, in fact, commissioned, appointed or enrolled, under the indian army act. accordingly therefore.....thom, j.1. the following question has been referred for decision : 'is the pay of an assistant surgeon of the indian medical department liable to attachment in execution of an order for maintenance and alimony passed by a civil court?'2. the question has arisen in connexion with an application made by one norbert edwin nugent, an assistant surgeon of the indian medical department, who was the respondent in matrimonial suit no. 3 of 1934. the petitioner in that suit was awarded the sum of rs. 150 per mensem, and on 15th february 1985, this court passed an ex parte order directing the controller of military accounts, northern command, rawalpindi, to deduct a sum of rs. 150 per mensem from the pay of the respondent and to remit the same to this court to be paid to the petitioner. the.....
Judgment:

Thom, J.

1. The following question has been referred for decision : 'Is the pay of an Assistant Surgeon of the Indian Medical Department liable to attachment in execution of an order for maintenance and alimony passed by a civil Court?'

2. The question has arisen in connexion with an application made by one Norbert Edwin Nugent, an Assistant Surgeon of the Indian Medical Department, who was the respondent in Matrimonial suit No. 3 of 1934. The petitioner in that suit was awarded the sum of Rs. 150 per mensem, and on 15th February 1985, this Court passed an ex parte order directing the Controller of Military Accounts, Northern Command, Rawalpindi, to deduct a sum of Rs. 150 per mensem from the pay of the respondent and to remit the same to this Court to be paid to the petitioner. The respondent thereupon presented an application to this Court praying that the order of 15th February attaching his salary be withdrawn. The learned Government Advocate, who appeared for the applicant, contended that the applicant being a person to whom the Indian Articles of War applied, his pay was not liable to attachment. Learned Counsel for the pensioner contended, on the other hand, that the applicant was not a person to whom the Indian Articles of War applied, that on the contrary his conditions of service and pay were governed by the Army Act of 1881, and that under the provisions of that Act and of the Civil Procedure Code his pay was attachable in execution of a civil Court decree.

3. The information on this point on record is meagre. Fuller particulars as to the conditions of service of the applicant could no doubt be obtained by reference to the Military authorities. Early in the hearing however it was intimated from the Bench, that it would not be necessary for the purposes of the reference to decide the question as to whether the Indian Articles of War or the Army Act governed the applicant's terms of service. In the result the argument that the Army Act applied was not developed; there was practically no citation or discussion of the statutory-provisions and authorities bearing upon the question and the learned Government Advocate was not invited to reply to the contention. In these circumstances I do not consider it expedient to express any opinion upon the matter which clearly raises questions of importance. The question referred may be answered without a decision upon the point.

4. In my judgment, if the applicant is a person to whom the Indian Articles of War apply, his pay is not liable to attachment in execution of a civil Court decree. The Indian Articles of War are now embodied in Act 8 of 1911. This Act repealed Act 5 of 1869 and Act 12 of 1894 which, prior to 1911, embodied the Indian Articles of War. By Section 2(a) of Act 8 of 1911 the provisions of the Act are made applicable to warrant officers. It is not in dispute that the applicant is a warrant officer. He does not hold His Majesty's commission, and the special provisions applicable to commissioned officers do not apply to him. Section 120, Act 8 of 1911, is in the following terms:

Neither the arms, clothes, equipment, accoutrements or necessaries of any person subject to this Act, nor any animal used by him for the discharge of his duty shall be seized, nor shall the pay and allowances of any such person or any part thereof be attached, by direction of any civil or revenue Court or any revenue officer, in satisfaction of any decree or order enforceable against him.

5. Clearly therefore by the provisions of Section 120 the applicant's pay is exempt from attachment in execution of a civil Court decree. Furthermore, Section 60, Civil P.C., makes provision for such exemption. The proviso to Section 60(1), Civil P.C., is in the following terms:

Provided that the following particulars shall not be liable to such attachment or sale, namely,... (j) The pay and allowances of the persons to whom the Indian Articles of War apply.

6. In view of the provisions referred to above, it is abundantly clear that if the applicant is a person to whom the Indian Articles of War apply, his pay is not liable to attachment in execution of a; decree of a civil Court. I now proceed to consider the position of a warrant officer to whom the provisions of the Army Act of 1881 apply. The relevant sections of the Act are Sections 136, 144 and 145 Section 136, as originally enacted, was in the following terms:

The pay of an officer or soldier of His Majesty's regular forces shall be paid without any deduction other than the deductions ordered by this or any other Act, or by any Royal Warrant for the time being.

7. This section was subsequently amended by the addition of the words, 'or by any law passed by the Government of India in Council.' Learned Counsel for the petitioner contended that inasmuch as there was no provision in the Civil Procedure Code for the exemption from attachment of the pay of a warrant officer, his pay was liable to attachment in execution of the order of a civil Court. In support of this contention he referred to the decision of a Bench of this Court in Husain Baksh v. Briggen Shaw : AIR1933All597 In the course of the judgment in this case the decision of a Bench of this Court in an earlier, case, Browne v. Pearce : AIR1926All122 was discussed. In this earlier case the decision was that the pay of a Military Assistant Surgeon was not liable to attachment in execution of a civil Court decree. Prom this decision the learned Judges who decided the case in Husain Baksh v. Briggen Shaw : AIR1933All597 dissented. They took the view that the. decision proceeded on the assumption that the proviso to Section 60(1), Civil P.C., permits the attachment of property is the cases therein specified, 'whereas in fact the proviso merely exempts certain property from attachment, including part of the salary and allowances of 'public officers,' and they held that if the property or salary does not fall within the proviso the general provisions of Section 60(1) must prevail; the whole salary of an Assistant Surgeon was therefore attachable since he is not a 'public officer' as defined by Section 2 of the Act. I am unable to agree with this view of the law and in my opinion the case in Browne v. Pearce : AIR1926All122 was correctly decided.

8. In the first place I would observe that if the view expressed by the Bench in Husain Baksh v. Briggen Shaw : AIR1933All597 be sound it follows that whilst the pay of a commissioned officer who comes within the definition of 'public officer' is attachable to the extent of one-half only, under Section 60(1), Civil P.C., the pay of a warrant officer is attachable to the full extent under the provisions of the Code. It may be assumed that the legislature never intended to put a warrant officer in a less privileged position than the more highly paid commissioned officer so far as the liability to attachment of his pay is concerned. Furthermore it is clear from a consideration of the provisions of the Army Act relating to the pay of officers, non-commissioned officers and men that Section 136 has no reference whatever to the question of the liability of pay to attachment by civil process. Section 136 lays down the general principle that the pay of an officer or soldier of His Majesty's regular forces shall be paid without any deductions except those authorized by the Army Act, any other Act (of the Imperial Parliament) or by any Royal Warrant for the time being or by any law passed by the Government of India in Council. Sections 137 and 138 authorize certain deductions from the pay of officers and soldiers. Section 138(8) authorizes the deduction of

the sum required to pay, any sum ordered by a Secretary of State to be paid as mentioned in this Act for the maintenance of his wife or child.

9. Now the Secretary of State may make such deduction up to a certain amount under Section 145 of the Act where there is a decree against the soldier. This section is included in a compartment of the Act headed 'Exemptions of officers and soldiers.' In this compartment Section 144 is also included. Section 144 makes provision for the exemption of soldiers in respect of civil process. Proviso (1) of the section is in the following terms, viz.:

Any person having a cause of action or suit against a soldier of the regular forces may, notwithstanding anything in this section, after duo 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.

10. In view of this provision which is not, as in the case of Section 136, made subject to any law passed by the Government of India in Council, and which is not affected by the provisions of the Civil Procedure Code, in virtue of the saving section [Section 4(1)] Thereof, the pay of a soldier can never be attached in execution of a civil Court decree. The reason for this exemption is obvious. Clearly it would be in the highest degree inexpedient if in the matter of deductions from the pay of soldiers, the military authorities were made subject to the orders of a civil Court. Certain deductions no doubt in the ordinary course must be made, but obviously the extent and manner of these deductions must be determined by the authority responsible for the welfare, discipline and efficiency of the army. It has been suggested that there is no real distinction between an attachment and a deduction from pay. In my opinion there is a clear and fundamental distinction. Deductions from pay are made by the army authorities in their discretion sunder the provisions of the Army Act. In the case of an attachment - which is a legal process - the Army authorities would have no discretion in the matter. They would be bound to obey the orders of the Court. For reasons above indicated the Imperial {Legislature have decided that the pay of a regular soldier may not be attached in any circumstances. In my opinion by the aforesaid amendment of Section 136, Army Act, the Imperial Legislature did not intend to give authority to the Government of India in Council to alter the law on this point. If the Imperial Legislature had intended to give the Government of India in Council the power to alter the law to the effect of depriving the regular soldier of an important protection, by enacting that his pay should be liable to attachment, not only Section 136, Army Act, but Sections 144 and 145 would have been amended specifically and there would have been no doubt a specific amendment in the Civil Procedure Code. It will be observed that the soldier's pay, so far as liability to attachment is concerned, is classed in the Army Act with 'arms, ammunition, equipment, regimental necessaries or clothing.' It cannot be contended that these were intended by the legislature in any circumstances to be liable to attachment. Further the pay of a warrant officer to whom the Indian Articles of War apply cannot be attached. No reason has been suggested for a distinction in this respect in the case of a warrant officer to whom the Army Act applies. Upon a consideration of the relevant sections of the Army Act my conclusion is that in no circumstances may a soldier's pay be, attached in execution of a civil Court decree.

11. A decree-holder, therefore, if he wishes to realise the amount of his decree, must make an application to the Secy. of State for War. Section 138(8), Army Act, authorises the Secy. of State to make deductions from pay of a soldier in respect of amounts due for maintenance of his wife and children. Section 145 authorises the deduction up to a certain amount from the pay of a soldier to meet the amount due under a maintenance decree against him, but in every case it is the Secy. of State, not the civil Court, who orders the deduction. It was suggested that the provisions of Section 145 do not apply to the applicant inasmuch as the petitioner is no longer his wife. We are not called upon however to decide that question. If the provisions of the Army Act apply to the applicant the military authorities no doubt will, on application, as they have done in other cases, give effect to the order for maintenance in virtue of their powers under Section 145. In the result I hold that in either view, whether the applicant be a person to whom the Indian Articles of War apply or a person to whom the provisions of the Army Act of 1881 apply, his pay is not liable to attachment in execution of an order for maintenance and alimony passed by a civil Court. I would answer the question referred in the negative.

Bonnet, J.

12. The following question has been referred by a learned single Judge for the decision of a Full Bench:

Is the pay of an Assistant Surgeon of the Indian Medical Department liable to attachment in execution of an order for maintenance and alimony passed by a civil Court?

13. While I agree with the conclusion of Hon'ble Thorn, J. that the question should be answered in the negative, I do not agree with his statement that we are unable to say whether the Assistant Surgeon is a person to whom the Indian Articles of War apply, or the Army Act of 1881, and that this matter should be settled by reference to the military authorities. In my opinion this is a point of law which should be settled by the High Court and not left to the military authorities to determine. And I consider that the decision of this point is the first matter to be decided in this reference. I also consider that the point should be decided because if the Assistant Surgeon came under the Indian Articles of War (Army Act, 1911) there would be no remedy open to the opposite party; but if the Assistant Surgeon comes under the Army Act, 1881, it will be open to the opposite party to adopt the procedure of Section 145 of that Act. I must also respectfully differ from the view of Hon'ble Thorn, J., that Section 136, Army Act, 1881, as amended in 1895, did not empower the Governor-General of India in Council to pass a law for attachment of the pay of an officer or soldier, but only to make a deduction from the pay, and I do not think that any such distinction can be drawn as to say that attachment is not a kind of deduction from pay.

14. For these reasons I have examined the matter in a separate judgment. On 16th November 1934 Mrs. M.J. Nugent was granted a decree absolute dissolving her marriage with Mr. N.E. Nugent and directing him to pay her Rs. 85 p.m. alimony and Rs. 65 maintenance for his children, total Rs. 150 p.m. out of his pay of Rs. 340 p.m. As alimony was in arrears a warrant of arrest was issued, and an objection was made that the respondent was an Assistant Surgeon, Second Class, in the British Military Hospital, Ambala, and as a warrant officer no part of his pay was liable to attachment. One of the questions which arises is whether the respondent, Mr. N.E. Nugent, is subject to the Indian Army Act, Act 8 of 1911, or to the British Army Act, 1881, 44 & 45 Viet., Chap. 58.

15. The respondent is shown in the Indian Army List for July 1936, at p. 680, in the Indian Medical Department, as Assistant Surgeon, Second Class, having joined the department on 21st November 1921, and being attached to the British Military Hospital at Sabathu, in the Punjab. In Army Regulations, India, Vol. 6, Medical, p. 4, para. 12 provides that Assistant Surgeons, First and Second Class, are warrant officers, ranking with conductors, and third and fourth class are also warrant officers, ranking with sub-conductors. Conductor and sub-conductor are ranks in the British Army. Para. 14 provides that Sub-Assistant Surgeons, First, Second and Third Classes, are Indian warrant officers. Appx. 2 provides for selection of the candidates for the Indian Medical Department by public competition, and states that 'in the case of Assistant Surgeons they must be of European or Eurasian parentage.' This provision does not apply to Sub-Assistant Surgeons. Para. 15 shows that Sub-Assistant Surgeons are employed in station hospitals for followers of British corps and for Indian troops, etc. But the Indian Army List shows that Assistant Surgeons on military duty are attached to British Military Hospitals. The Indian Army Act, 1911, states:

2. (1) The following persons shall be subject to> this Act, namely: (a) Native officers and warrant officers; (b) persons enrolled under this Act; (c) persons not otherwise subject to Military law, who, on active service, in camp, on the march, on at any frontier post specified by the Governor-General in Council by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, His Majesty's Forces.

16. Now in class (a) the respondent cannot come, because he is not an Indian, and the two classes of officers and warrant officers, are both governed by the word 'native.' This is also shown by Section 7(3) which says : warrant officer means a person appointed, gazetted or in pay as a native warrant officer in His Majesty's Indian Forces.' It is not contended that the respondent comes in either class (b) or class (c), and it is clear that these classes also could not apply to him. Commenting on these provisions, the Manual of Indian Military Law, issued by the Government of India, Army Department, 1922, p. 4, states:

The Indian legislature had, by Section 73, Government of India Act, 1833...power to make laws for all 'native officers and soldiers,' that is for all persons permanently subject to Military law and regularly commissioned, appointed, or enrolled into the military service of the Crown in India who are 'natives of the East Indies or other places within the limits of the Company's Charter,' in fact for all Asiatics in the Indian Army. Section 73, Government of India Act, 1833, has been repealed and by Section 65(1)(d), Government of India Act, 1919, which replaced it, the Indian legislature is empowered to make laws for the government of. officers, soldiers, and followers in His Majesty's Indian forces which laws shall, as in the Act of 1833, apply to them at all times and wherever serving. Having regard to the history of the provision and to the fact that the Government of India Act purports to do no more than consolidate the existing law, Asiatic officers, soldiers and followers are clearly intended and only such are, in fact, commissioned, appointed or enrolled, under the Indian Army Act.

17. The actual words in the Government of India Act, 1919, are:

Section 65(1). The Indian legislature has-power to make laws, (d) for the Government officers, soldiers, airmen and followers in His Majesty's Indian forces, wherever they are serving,, in so far as they are not subject to the Army Act, or the Air Force Act.

18. There is a similar restriction in the-Government of India Act, 1935, Section 110(b)(i), that the Army Act cannot be affected. In the Manual of Military Law, 1929, issued by the Army Council, it is stated on p. 238:

Indian forces.

81. The Indian regular forces consist of regiments and formations normally stationed in India, and formed almost entirely from Indians. The Indian Officers, who hold commissions from the Viceroy and Governor-General of India, and men of those forces, are subject to the Indian Army Act, 1911, or previous Acts which it has superseded, wherever they are serving, and are only to a limited extent subject to the Army Act. There are also Europeans, and a certain number of Indians, serving as officers, and persons of certain degrees of European descent serving as non-commissioned officers, hospital apprentices, or otherwise, who, though forming part of the Indian forces, belong to His Majesty's regular land forces, and are subject to British and not to Indian Military law. The enlistment of Europeans for these forces, except for medical or other special service, is prohibited.

19. This passage shows that Europeans enlisted for medical services come under the Army Act. The Army Act, Section 180(2), provides:

In the application of this Act to His Majesty's Indian forces the following modifications shall be made : (a) Nothing in this Act shall prejudice or affect the Indian Military law respecting officers or soldiers or followers in His Majesty's Indian forces, being natives of India; and on the trial of all offences committed by any such native officer, soldier, or follower, reference shall be had to the Indian Military law for such native officers, soldiers, or followers, and to the established usages of the service, but courts-martial for such trials may be convened in pursuance of this Act; (b) For the purposes of this Act the expression 'Indian military law' means the Articles of War or other matters made, enacted, or in force under the authority of the Government of India, and such articles or other matters shall extend to such native officers, soldiers, and followers wherever they are serving.

20. This passage shows that Indian military law, formerly the Indian Articles of War and now. the Indian Army Act, 1911, applies only to officers, soldiers, and followers, who are Indians, and not to such persons if they are Europeans. The various Government of India Acts show that the power to make laws on this subject was limited to laws for Indians, and these passages will be quoted later in another connexion. The conclusion therefore is clear that Europeans serving in India as officers or non-commissioned officers or otherwise, though they may be appointed in India, are subject to British and not to Indian Military law. The respondent is such a person and he is therefore subject to the Army Act, 1881, and not to the Indian Army Act, 1911. This matter relating to the position of an Assistant Surgeon in the Indian Medical Department has been before the Courts on four occasions and on none of these occasions has it been held that he was subject to the Indian Army Act. At the most that Act has been considered as an alternative; this was held in Browne v. Pearce : AIR1926All122 In May Geraldine Duckworth v. George Francis Duckworth A.I.R. 1919 Bom. 133 there was a decision holding that such an officer came under the Army Act and in that case at p. 370, an order of the Commander-in-Chief in India dated 26th June 1917 is printed directing that under Section 145, Army Act, the defendant should pay maintenance and alimony to the plaintiff. This shows that the highest military authority in India has treated the defendant, a Second Glass Assistant Surgeon in the Subordinate Medical Service, as coming under the Army Act. In two cases in the Court of the Judicial Commissioner of Oudh, a defendant E.G.A. Prins, was before the Court. In the earlier ruling, Murray & Co., Ltd. v. E.G.A. Prins (1911) 14 P.C. 82 it was held that Prins who was an Assistant Surgeon in the Indian Subordinate Medical Department was not liable to have his salary attached under the provisions of the Army Act, 1881. In a later ruling between the same parties Lt. E.G.A. Prins v. Murray & Co., Ltd. A.I.R. 1914 Oudh. 199, when Prins had by that time become a commissioned officer, it was held that the Army Act applied to him, but as he was a commissioned officer his pay was liable to attachment to the extent of one moiety. These authorities therefore show that the respondent is a person who comes under the Army Act, 1881, and not under the Indian Army Act, 1911. The question which arises now is how he stands as a warrant officer in regard to the provisions of Section 60, Civil P.C., Army Act, 1881, Section 190(6), states:

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

21. Army Act, Section 136, states:

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

22. The last clause was added by Section 4, Army Amendment Act, 1895. In Section 190(8) it is stated that the expressions 'regular forces' and 'His Majesty's regular forces' mean officers and soldiers who by their commission, terms of enlistment, or other, wise, are liable to render continuously for a term military service to His Majesty in a every part of the world, or in any specified part of the world, etc. The respondent is liable to render continuous military service and therefore he comes under Section 136. Section 145, Army Act, provides for decrees against a soldier for the maintenance of his wife or child, which decrees are sent to the Army Council, and the Army Council may in their discretion order a deduction from the pay of the soldier, the deduction being made under this section and Section 138(8). Note 3 under Section 145 refers to alimony as coming under that section, in the Manual of Military Law, 1929, published by the Army Council. The provisions of the Army Act therefore are that no attachment of pay of a soldier can be made on a decree for alimony, but a copy of the decree may be sent to the Army Council, who have a discretion to order deduction of whatever amount they think fit, but not exceeding two-thirds of the pay of a warrant officer [Section 145(2)]. The position of an officer is different, as he is not protected by any section corresponding to Section 145. On the contrary Section 141 recognizes the validity of an assignment of his deferred pay, etc., if authorized by any Act, and note 3 refers to the Bankruptcy Act, 1914, Section 51(1) under which the trustee is to receive for distribution among the creditors so much of the officer's pay as the Court, with the consent of the chief officer of the department concerned, may direct. Turning to India, as stated above Section 136, Army Act, as amended in 1895, recognized deductions from the pay of an officer or soldier authorized by any law passed by the Governor-General of India in Council. This was an innovation, because the different Acts for the Government of India definitely forbade any laws repealing or affecting the Army Act. These Acts have been arranged as a 'Digest of Statutory Enactments relating to the Government of India' in the Government of India by Sir Courtney Ilbert, 1907. Section 63 provides:

(1) The Governor-General in Council has power at legislative meetings to make laws....(c) for all persons being native Indian subjects of His Majesty or native Indian officers, soldiers, or followers in his Majesty's Indian forces, when respectively in any part of the world, whether within or without His Majesty's dominions;

(2) provided that the Governor-General in Council has not power to make any law repealing or affecting....(d) the Army Act, or any Act amending the same.

23. It was at this stage that the Civil Procedure Code was enacted in 1908. It deals with attachment and sale in execution of a decree in Section 60, which provides in (1) for attachment and sale of money, which would include salary or pay. In regard to 'public officers' Sub-section (1)(i) provides for exemption of half the salary, or Rs. 20 if it does not exceed Rs. 40. Public officer as defined in Section 2(17) and the part which refers to the Army, is:

(c) 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.

24. There is no inclusion of a warrant officer, non-commissioned officer or soldier in this definition, and if these persona were to be included in the definition of 'public officer' they would come under Sub-section (c) and not under some other subsection. As Sub-section (c) only refers to commissioned or gazetted officers these persong are not included in it, and therefore they are not public officers under Section 2 (17) Civil P.C. In 55 All 6481 at p. 653 it was stated:

The question in each case will arise whether an officer or soldier, to whom the Army Act applies, is a public officer within the meaning of the proviso to Section 60(1).

25. This is incorrect; a commissioned officer is such a 'public officer,' but a soldier is not, and it does not depend on the case. Section 60(2) stated:

Nothing in this section shall be deemed...(b) to affect the provisions of the Army Act or of any similar law for the time being in force.

26. It will be noticed that the language of this Sub-section (2) is similar to the language of Section 63(2) of the Digest of Statutory Enactments relating to the Government of India in fore in 1908, and it is probable that Section 60(2)(b) was added for this reason. But apparently it was Considered that Section 60(2)(b) was not consistent with the provisions in the Civil Procedure Code by which half the salary of a commissioned officer was liable to attachment, and there is no doubt that such a provision does affect the provisions of the Army Act, as Section 136 says that the pay of an officer shall be paid without any deduction. The Governor-General in Council was authorized by the amended Section 136 to pass a law authorizing a deduction and in the Civil Procedure Code he had passed such a law. Accordingly therefore Sub-section (b) of Section 60(2) was omitted by the Repealing and Amending Act, Act 10 of 1914, Section 3 and Schedule 2. This omission has given a good deal of trouble to the High Courts in India, and the argument has been advanced for the petitioner that by removing Sub-section (b) the Legislature intended that the pay of a soldier should become liable to attachment under the general provision of Section 60(1) about money. This view is unsound for the following reasons: Firstly, to make the pay of a soldier liable, the Governor-General in Council would have to pass a law 'authorizing the deduction' under the power given to him by the amendment to Section 136, Army Act. This implies that as in the case of officers there should be a positive mention of soldiers as being made liable under Section 60, Civil P.C. Even if Sub-section 2(b) had not appeared in the Code as enacted in 1908, the mere omission to refer to soldiers could not be fairly construed as a law making them liable against the provisions of Section 136, Army Act, by which their pay is to be paid without deduction. The deduction must be authorized by positive law. This is also shown by Section 4(1), Civil P.C., which states:

In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force....

27. The Army Act is a special law. A specific provision is needed in the Code to affect it. There is no specific provision about soldiers in Section 60. Therefore Section 60 does not affect the provisions in the Army Act about soldiers. Secondly, if the argument for petitioner were accepted, it would follow that while the pay of commissioned officers could only be attached to the extent of one half, the pay of soldiers could be attached altogether without exemption of any portion, although the pay of labourers and domestic servants is exempt under Section 60(1)(i). It seems impossible that such could have been the intention of the Governor-General in Council. Thirdly, the omission of the subsection by the amendment is sufficiently explained by the apparent inconsistency of the Sub-section with the provisions in regard to commissioned officers in Section 60(1)(i). The conclusion therefore is that Section 60, Civil P.C., does not apply to the pay of a soldier who is governed by the Army Act of 1881. The provisions of subsequent Government of India Acts may be noted. The Act of 1919 provides in Section 65:

(1) The Indian Legislature has power to make laws (d) for the government of officers, soldiers, airmen, and followers in His Majesty's Indian forces wherever they are serving, in so far as they are not subject to the Army Act or the Air Force Act. (2) Provided that the Indian Legislature has not, unless expressly so authorized by Act of. Parliament, power to make any law repealing or affecting (i) any Act of Parliament passed after the year one thousand eight hundred and sixty and extending to British India (including the Army Act, the Air Force Act and any Act amending the same).

28. In the Government of India Act, 1935, Section 110 provides:

Nothing in this Act shall be taken (b) to empower the Federal Legislature, or any Provincial Legislature : (i) to make any law affecting...the Army Act.

29. The prohibition against making laws affecting the Army Act has been continued. It is also to be noted that the amended Section 136, Army Act, permits laws to be passed by the Governor-General of India in Council' authorizing deductions from the pay of officers and soldiers of His Majesty's regular forces. Although that Act is amended every year the expression 'the Governor-General in Council' has not been amended to 'the Indian Legislature' and apparently the power to make laws under the amended Section 136 has not been given to the Indian Legislature, and this is also shown by the quotation above from Section 110(b)(i), Government of India Act, 1935. I now examine certain rulings which have been quoted by learned counsel : Colonel Lecky v. Bank of Upper India (1911) 33 All. 529 Col. Lecky, Royal Artillery, came under the Army Act. On p. 537 it was held that in that Act in 1881 there stood a Section, 151, which authorized Courts of Small Causes and civil Courts in India upon adjudging payment of a debt by a person subject to Military law other than a soldier of the regular forces to direct specially that the amount named in the direction, being the whole or any part of the said sum, shall be paid by instalments or otherwise out of any pay or other public money payable to the debtor, and the amount named in the direction, not exceeding one-half of such pay and public money, shall, while the debtor is in India, be stopped and paid in conformity with the direction : 'instalments so directed would be authorized1 deductions in the sense of the words used in Section 136.' I follow this ruling in differing from Hon'ble Thorn, J., where he holds the opposite, that the word 'deductions' in Section 136, Army Act, cannot cover attachment of pay.

30. The ruling proceeds to point out that in 1895 the Amending Act repealed this Section 151 and added the words to Section 136 'or by any law passed by the Governor-General of India in Council.' I consider that the Amending Act repealed Section 151 which dealt with attachment and substituted these words in Section 136 with the intention that the words should also cover attachment. The intention apparently was that instead of the law of attachment for commissioned officers being fixed by the Army Act, the Governor-General in Council should have power to pass laws from time to time on the subject, and a wider power was given as the legislation might also be for soldiers. The Governor-General in Council did in fact pass a law for attachment of the salaries of commissioned officers under this provision, which is contained now in Section 60(1)(i), Civil P.C. I think therefore that there is no doubt that these words in Section 136, Army Act, do cover legislation for attachment of salaries and are not limited to deductions by means other than attachment. The ruling under consideration proceeds to quote Section 60(1)(i) and states on p. 538:

If this were all, there would be ample authority for the order passed by the lower Court. This was the view taken by the Calcutta High Court in Calcutta Trades Association v. Ryland (1897) 24 Cal. 102. In Watson v. Lloyd (1902) 25 Mad 402 the Madras High Court held that the case in Calcutta Trades Association v. Ryland (1897) 24 Cal. 102 was rightly decided and followed it.

31. The Court then proceeded to hold that Section 60(2), Civil P.C., compelled the Court to exclude Section 60 from its consideration in the case, as it stated that nothing in the section shall be deemed to affect the provisions of the Army Act. It was doubtless on account of this and similar decisions that Section 60(2) was removed from the Code by Act 10 of 1914. The ruling quoted was given in 1911.

32. The next ruling is Hay v. Ram Chandar A.I.R. 1917 All. 315. Hay was a major in the Indian Army, a British officer. It was held that attachment of half his pay was correct, partly because Section 60(2), Civil P.C., had been repealed in 1914, and partly because the Court adopted the reasoning in Lt. E.G.A. Prins v. Murray & Co., Ltd. A.I.R. 1914 Oudh 199. That ruling was given when Section 60(2)(b) was in force and it was held on p. 938 that:

We are unable therefore to adopt the view oh the law which has been taken in the Allahabad and Bombay cases, namely, that Section 60, Sub-section (2), Clause (b), Civil P.C., amounts to a declaration that the provisions of Section 60, Sub-section (1), do not constitute a law passed by the Governor-General of India in Council authorizing deductions to be made from the pay of an officer of His Majesty's Regular Forces.

33. By adopting this view the Allahabad Bench in 1917 abandoned the previous Allahabad rulings. But as the Sub-section in question was repealed in 1914 the point is no longer important, except so far as importance has been attached to the repeal in later rulings. In May Geraldine Duckworth v. George Francis Duckworth A.I.R. 1919 Bom. 133 there was a case similar to the present where the wife of a Second Class Assistant Surgeon in the Indian Subordinate Medical Department, a warrant officer in the British. Army, had obtained a decree of dissolution of marriage under the Divorce Act and also an order for alimony. The argument made for the wife was that because Section 60(2)(b) had been repealed in 1914 therefore attachment could be made of one moiety of the respondent's pay. On page 374, Scott, C.J., held:

We are unable, however, to hold that the removal of Sub-section (b) of Section 60(2) from the Civil P.C. has the effect contended for. It Was removed by a Repealing and Amending Act (10 of 1914) on the ground that it as well as the other Enactments referred to in the Second Schedule were spent or had ceased to be in force otherwise than by express specific repeal or had by lapse of time or otherwise become unnecessary. The preparation of these Acts is part of the routine work of the Legislative Department in the expurgation of dead law from the Statute Book. They are not Amending Acts. The Sub-section may be taken to be dead law on the ground that it had 'expired' by the re-enactment since 1908 of the Army Act, which thus became a later Enactment superseding and rendering unnecessary the saving clause in the Civil Procedure Code : see Craies on Statute Law, Ch. 5. Even if this were not so, the terms of Section 4 Civil P.C., and the maxim gener alia specialibus non derogant would comper us to apply the special rule of procedure provided by Section 145 of the Army Act in preference to the general provisions of the Code.

34. I agree with the above view of the repeal of Section 60(2)(b) in 1914, and I would add that Section 4, Civil P.C. requires that there should be a 'specific provision' in the Code in order that anything in the Code should affect the provisions of any special or local law. The Army Act is a special law, and there is nothing in Section 60 of the Code in the way of a 'specific provision' to affect Section 136, Army Act, other than the provision about the attachment of the, pay of public officers in Section 60(1)(i), who are defined in Section 2(17)(c) to include commissioned officers, but not to include warrant officers or non-commissioned officers, or soldiers. In the absence of a 'specific provision' the pay of warrant officers, non-commissioned officers, and soldiers cannot be attached by a civil Court. This ruling was followed by another Bench in Brown v. Hanson A.I.R. 1933 Bom. 185. In Browne v. Pearce : AIR1926All122 a Bench of this Court applied this rule on p 75 to the case of an Assistant Surgeon of the Indian Medical Department and held that his pay could not be attached because he was not a commissioned officer and did not come under Section 2(17)(c), Civil P.C. The ruling further observed that a commissioned officer in a British Regiment was not technically serving under the Government (of India). I think this is an error; he is serving under that Government as long as he draws his pay from that Government. But if he came to India on leave from a regiment stationed outside India he would not be serving under the Government of India, and his pay though drawn in India on a Colonial Warrant would not be liable to attachment. The last Allahabad ruling is Husain Baksh v. Briggen Shaw : AIR1933All597 . Unfortunately the ruling does not state whether Shaw was a commissioned officer or not, but it held that the Army Act applied to him, and not the Indian Army Act, 1911. On p. 652 it was faeld:

Section 60, Civil P.C., as it originally stood, provided in Clause (b) to Sub-section (2) that nothing in that section affected the provisions of the Army Act. In view of this provision the pay of an officer or soldier to whom the Army Act applied and who served in India could not be attached. An important amendment was, however, made by Act 10 of 1914, by which Clause (b) to Sub-section (2), referred to above, was deleted, with the result that Section 60(1), Civil P.C., became applicable to officers and soldiers to whom the Army Act is applicable, unless there to something in the latter Act which excludes its application. As already noticed, Section 136, Army Act, as amended in 1895, makes itself subject to Acts passed by the Governor-General in Council. The Code of Civil Procedure is an Act of the Governor-General in Council. It follows that a deduction from the salary of an officer or soldier, to whom the Army Act applies, can be made if the Code of Civil Procedure permits the same being done.

35. On p. 654 the conclusion is stated:

If the judgment-debtor is a public officer, as defined in Section 2(17), Civil P.C., his salary is exempt from attachment to the extent mentioned in Clause (i) of the proviso to Section 60(1), Civil P.C., and that if he is not such a public officer, it is not exempt from attachment to any extent.

36. With all due respect to the learned Judges who decided this ruling, I must point out that the conclusion that the salary of a soldier may be attached in full rests on two fundamental errors, : (1) the omission to note that Section 4, Civil P.C., requires that there should be a 'specifics provision' in the Code to make any part of it affect any special law, and there is no specific provision to make Section 60 apply to soldier; and (2) omission to note that Act 10 of 1914 was not an Amending Act, intended to make a substantial change in the law, but merely a routine Act dealing with formal defects in the law as explained by Scott, C.J. on p. 374 in May Geraldine Duckworth v. George Francis Duckworth A.I.R. 1919 Bom. 133. As these cases arise from time to time and the points of law are somewhat involved, I consider that it will be useful to summarize my conclusions in the following propositions:

1. Europeans and Anglo-Indians serving as commissioned officers, warrant officers, non-commissioned officers, Assistant Surgeons in the Indian Medical Department, or otherwise, who, though forming part of the Indian forces, belong to His Majesty's regular land forces, are subject to the Army Act and not to the Indian Army Act. 2. The pay of commissioned officers subject to the Army Act may be attached under Section 60(1)(i), Civil P.C., to the extent of one moiety. 3. The pay of warrant officers, non-commissioned officers, soldiers and Assistant Surgeons in the Indian Medical Department, who are subject to the Army Act, is not liable to attachment under the Code of Civil Procedure as there is no specific provision that it is attachable, and a specific provision is necessary to overcome the exemption under Section 136, of the Army Act. 4. Indian officers who hold commissions from the Viceroy, and men of the regular Indian forces, and noncommissioned officers of those forces, and Sub-Assistant Surgeons of the Indian Medical Department, are subject to the Indian Army Act and their pay is exempt from attachment, under Section 60(1)(j), Civil P.C.

37. In regard to the reference, it will be open to the petitioner to take the same steps as were taken by the divorced wife in May Geraldine Duckworth v. George Francis Duckworth A.I.R. 1919 Bom. 133, where at p. 370 the order i9 printed of the Commander-in-Chief granting her alimony and maintenance by a deduction from the pay of the respondent also an Assistant Surgeon in the Indian Medical Department, under Section 145(2), Army Act. It is true that in the case quoted, the deduction was only one shilling and six pence a day, as the case was of 1917. But the Act has been amended by 22 Geo. V., Oh. 22, and as it now stands the limit to the deduction is that there should be not less than one-third of his pay left to the warrant officer. As Rs. 150 has been granted as alimony and maintenance by |the Court and the pay was Rs. 340, the deduction would not exceed this limit. My answer to the reference is that the pay of an Assistant Surgeon of the Indian Medical Department is not liable to attachment in execution of an order for maintenance and alimony passed by a civil Court.

Smlaiman, C.J.

38. It is wholly unnecessary for me to express any final opinion ?on the scope of Sections 136 and 144, Army Act, as the case before us is really governed either by Section 120, Indian Army Act, or by Section 145, Army Act. Whatever we may say as regards Section 136 or Section 144 would be merely obiter dicta and not affect the ruling in Hussain Baksh's case Husain Baksh v. Briggen Shaw : AIR1933All597 . But as my learned brethren have discussed those sections also, I feel that I should indicate the other point of view as well. The provisions of the Indian Army Act (Act 8 of 1911), if it governs the husband, are perfectly clear and leave no doubt in the matter. Under Section 119, no person subject to that Act is liable to be arrested for a debt under any process; and under Section 120 the pay and allowances, etc., of any such person cannot be attached at all. There is nothing in that Act which expressly makes it subject to the Civil Procedure Code, and Section 60(1)(j), Civil P.C. expressly makes the pay and allowances of persons to whom the Indian Articles of War (now the Indian Army Act) applies not liable to attachment. There is however a marked contrast so far as the provisions of the Army Act are concerned. Section 136 makes the pay of an officer or soldier payable without any deduction other than those authorized by the Act. Now the word deduction would prima facie mean deduction at the source, which may not be the same thing as attachment in execution of a decree. Sections 137 and 138 show what is meant by the deductions contemplated by Section 136. Sections 136 and 142 come under the heading 'pay.'

39. Then follows a new heading 'Exemption of officers and soldiers' under which some Sections 143 to 147. Section 151 was a special section referring to the attachment of the pay of officers, showing clearly that Section 136 did not include such attachment. If Section 136 had been intended to protect a soldier against attachment of his salary in execution, there would be no need to reproduce this protection in a restricted sense in the proviso to Section 144. I might therefore be inclined to agree with my learned brother, Thorn J., that process comes under Sections 144 and 145, whereas the deduction of salary under Section 136. Under the Army Amendment Act of 1894, the words 'or by any law passed by the Governor-General in Council' were added to Section 136, so as to make it subject to the Indian Act. Also by the same amending Act Section 151, Army Act, which has provided for the attachment of the pay of all persons subject to military law in India other than soldiers of the regular forces, was repealed. I agree with my learned brother Bennet J. that the amendment of Section 136, Army Act, empowered the Governor-General in Council to pass a law for the attachment of pay of an officer or soldier. All these amendments leave no doubt in one's mind that the legislature has deliberately and expressly made Section 136 subject to Section 60, Civil P.C. In spite of this there was a conflict of opinion prior to 1914 in the Indian High Courts as to whether Section 136, Army Act, was subject to the provisions of Section 60. In Watson v. Lloyd (1902) 25 Mad 402 at p. 406, Calcutta Trades Association v. Ryland (1897) 24 Cal. 102 and Lt. E.G.A. Prins v. Murray & Co., Ltd. A.I.R. 1914 Oudh 199, it was held that the pay could be attached. On the other hand, in view of the express words in Section 60 that nothing in it would affect the Army Act, in Colonel Lecky v. Bank of Upper India (1911) 33 All. 529 and Velchand Chhanganlal v. Lieut E. Bourchier (1913) 37 Bom. 26, it was held that the pay could not be attached.

40. The legislature intervened, obviously in order to settle this conflict of opinion. Under Act 10 of 1914, Clause (2), Sub-section (b) of Section 60 the words which said that nothing in that section affected the provisions of the Army Act were expressly deleted. Section 60(1)(j) contains an absolute protection for the pay and allowance of persons governed by the Articles of War (now the Indian Army Act). It is significant that there is no such general provision regarding persons governed by the Army Act. Thus Section 136 is made expressly subject to Section 60, and Section 60 is no longer subject to the Army Act. There can, therefore, be no doubt that the provisions of Section 136, Army Act, have been intentionally superseded by the provisions of Section 60, Civil P.C., and the view expressed in Madras, Calcutta and Oudh has been given effect to. That Section 136 has been definitely affected by Section 60 is also clear from the fact that Section 60 gives a partial protection to public officers as regards their salaries and allowances, and Section 2(17) expressly provides that a public officer includes every commissioned or gazetted officer in the military forces.

41. I do not however agree that a soldier would be in a worse position than a military officer. It seems to me that a soldier is a public officer within the meaning of Section 2(17)(g) and (h) inasmuch as (i) it is certainly his duty to keep some property on behalf of Government, namely, ammunition, rifle, etc., and (ii) he is in the service or pay of the Government for the performance of a public duty, namely discharge of military duty. He is therefore entitled to protection under Section 60(i).

42. The provisions of Sections 144 and 145 are, however, not subject to Section 60 at all. But Section 144 contains only a limited and not an absolute protection. Its language is quite different from that of Section 120, Army Act. Under Sub-section (1) a soldier is exempt from being arrested and appearing in person before any Court, except on account of a criminal offence or when his debt exceeds 30. Sub-section (5) makes only such proceedings in execution void as are 'in contravention of the section.' The section would be contravened only if a soldier is taken out for a liability not exceeding 30, or for any matter not amounting to a crime. Nothing else would be a contravention of the section. There is nothing in the substantive section itself which contains any direct prohibition against attachment. The proviso allows proceedings to continue up to judgment, notwithstanding anything contained in the section, and also allows execution to proceed against other properties of the soldier, notwithstanding anything contained in the section. But the proviso neither permits an attachment of pay nor contains in express language any direct prohibition against such attachment in execution of a decree. It merely provides what can be done in spite of the provisions of the substantive section; and its language falls short of saying what must not be done. The language is perhaps unfortunate, but we have to interpret the Act as we find it. It is not for me to speculate why there should be a difference. That may be due to the fact that one is an Imperial Act for the entire British Empire; and the other is a purely Indian Act. Another reason may be that the scales of salaries of the persons governed by the two Acts widely differ. Or the reason may be that it was first thought that Section 136 would protect his pay and there was no need for a second prohibition. The fact however remains that the language of Section 144 is very restricted and so causes considerable difficulty in my mind. I would therefore hesitate before I dissent from the view expressed in Husain Baksh v. Briggen Shaw : AIR1933All597 , that the pay or salary is attachable; but I would add that it will be subject to the partial protection afforded to public officers by Section 60, Civil P.C. The present case in my opinion is really governed by Section 145, Army Act, if the husband is subject to that law. Section 145(1) to contains a clear prohibition that:

Execution in respect of any such law (i.e., to contribute to the maintenance of his wife and children) or of any order or decree in respect of such maintenance shall not issue against his person, pay, etc.

43. This section embodies a special procedure to be followed, and unlike Section 136 is not made subject to the provisions of Section 60, Civil P.C. Hence under Section 4, Civil P.C., it must prevail over the general provisions of the Code. The exact procedure prescribed by Section 145 for the realisation of the amount of maintenance allowed to his wife or children must, therefore, be followed.

44. The only difficulty that I feel about Section 145 is that it refers to the liability of a soldier to maintain his wife and children. I have considerable hesitation in holding that the section also casts a liability on a soldier to maintain a woman who was formerly his wife and has now been divorced from him. Interpreting the section strictly, I would be inclined to hold that it would not cover the case of a divorced wife. On the other hand, on a liberal interpretation, where the alimony awarded to a divorced wife is in the nature of a maintenance allowance to her until she remarries, the word 'wife' may include such a divorced wife as well. My learned brother Bennet, J., thinks that the word 'wife' includes a divorced wife, such as the applicant in the present case. This view is in accord with that expressed in May Geraldine Duckworth v. George Francis Duckworth A.I.R. 1919 Bom. 133, which also was a case of a divorced wife. With some hesitation I feel that I should not differ. I therefore concur in the final order proposed, that the pay of the Assistant Surgeon cannot be attached in execution of a decree for alimony and maintenance.

45. The answer to the question referred to us is in the negative.


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