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Colonel Lecky Vs. Bank of Upper India, Ltd. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.1023
AppellantColonel Lecky
RespondentBank of Upper India, Ltd.
Excerpt:
.....and the policy remains in force and to recover the same from the defendants with interest at rs. 11. we are satisfied that the learned-subordinate judge did not intend and did not grant only a declaration that the plaintiff bank was entitled to pay the premiums due on the policy until the decree was..........held that applications by a decree-holder in accordance with law made under section 258 of the code of civil procedure, 1882, were applications by a decree-holder to take some step in aid of execution within the meaning of clause 4 of column 3, article 179 of the indian limitation act 1877. this ruling would appear fatal to the objection raised by the appellant.7. the learned counsel for the appellant seeks to distinguish the present appeal from the case of sujan singh v. hira singh 12 a. 399 on the ground that in the latter case the decree-holder had applied lander section 235 of the code of civil procedure, 1882, for execution of the decree held by him before he had certified payments to the court under section 258, while in the present case no similar applications had been made by.....
Judgment:

1. On the 24th day of December 1900 the Bank of Upper India Limited obtained a money-decree against three Officers of His Majesty's Regular Forces. No application for execution of this, decree, as the term is ordinarily understood, was made until the 8th day of April 1910 when the decree-creditor applied to the Subordinate Judge of Meerut for execution of the decree by attachment of half of the salary of one of the said Officers, Colonel R. Lecky, appellant to this appeal.

2. The judgment-debtor, Colonel R. Lecky, objected to the attachment proposed by the decree-creditor on the grounds that:

1. the application was barred;

2. his salary was not liable to attachment;

3. the decree does not empower the decree-holder to realise under it certain premiums alleged by the decree-holder to have been paid in order to keep alive certain insurance policies held by the Bank as security for the monies originally advanced by the said Bank.

3. Other objections were raised, but the present appeal is not concerned with them.

4. The objections above-mentioned were overruled by the learned Subordinate Judge. The appellant raises them again before us.

5. As regards the first of these objections the decree-holder certified to the Court of the Subordinate Judge payments made by one of the judgment-debtors other than the appellant:

1. on the 17th day of January 1902;

2. on the 9th day of June 1904;'

3. on the 13th day of March 1907;

4. on the 22nd day of April 1908;

5. on the 18th day of February 1910, and it is contended on his behalf that the several acts of certifying by the decree holder of these payments to the Court are applications in accordance with law to the proper Court to take some step in aid of execution of the decree. This being the case, the application of 8th day of April 1910 is well within time.

6. A full Bench of this Court in Sujan Singh v. Hira Singh 12 A. 399, held that applications by a decree-holder in accordance with law made under Section 258 of the Code of Civil Procedure, 1882, were applications by a decree-holder to take some step in aid of execution within the meaning of Clause 4 of column 3, Article 179 of the Indian Limitation Act 1877. This ruling would appear fatal to the objection raised by the appellant.

7. The learned Counsel for the appellant seeks to distinguish the present appeal from the case of Sujan Singh v. Hira Singh 12 A. 399 on the ground that in the latter case the decree-holder had applied lander Section 235 of the Code of Civil Procedure, 1882, for execution of the decree held by him before he had certified payments to the Court under Section 258, while in the present case no similar applications had been made by the decree-holder.

8. We fail to see any force in this argument. Indeed, to accept it as valid we should have to read into Article 182 of the Indian Limitation Act, 1908, after the words, & c., 5 (where the words in a previously instituted application for execution of the same decree under Section 235 of the Code of Civil Procedure, 1882.' The application out of which this appeal has arisen was an application for the execution of a decree of a Civil Court bearing date 24th December 1900. The decree-holder had in the years 1902, 1904, 1907, 1908 and 1910 applied in accordance with law to the proper Court to take a step in aid of execution of the decree and the application now under consideration was made within three years of the 18th February 1910. This objection, therefore, fails.

9. To take next in order the third objection.

10. Both sides admit that the answer rests upon what is the proper interpretation of the decree under execution. The portion of the decree which refers to this point runs as follows:

It is further ordered that the Bank the plaintiff is entitled to pay' the premiums until the decree is satisfied and the Policy remains in force and to recover the same from the defendants with interest at Rs. 10 per cent. per annum.

11. We are satisfied that the learned-Subordinate Judge did not intend and did not grant only a declaration that the plaintiff Bank was entitled to pay the premiums due on the Policy until the decree was satisfied. It did not give a decree for the realization of such future and unascertained sums against any of the defendants.

12. There remains the second objection. The Army Act 1881 (Statute 44 and 45 Vict. Ch. 58 in Section 135 enacted that the pay of an Officer of Her Majesty's Regular Forces shall be paid without any deduction other than the deductions authorised by it or by any Royal warrant for the time being. This section was amended in 1895. By the Army (Annual) Act 1895, Section 4, to Section 136 of the Army Act were added the words or by any law passed by the Governor-General of India in Council.' The section so amended forms part of the Army (Annual) Act 1910, now in force.

13. In the Army Act, 1881, there stood a section, viz., 151, which authorized Courts of Small Causes and Civil Courts in India upon adjudging payment of debts by a person subject to Military Law other than a soldier of the Regulars 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.

14. Instalments so directed would be authorized deductions in the sense of the words used in Section 136 and to order such instalments would be within the jurisdiction of the Subordinate Judge. But in 1895, the Army (Annual) Act 1895 repealed Section 151 of the Army Act (44 and 45 Vict. C. 58) and to direct in India any deduction from the pay of an officer of the Regular Forces, if legal, must rest upon the provisions of a law passed by the Governor-General in Council.

15. Neither side has referred us to any law now extant and bearing upon the point save the Code of Civil Procedure, 1908, and we know of no other.

16. The only portion of the Code that has any application is Section 60. This enacts that debts belonging to a judgment-debtor are liable to attachment and sale in execution of a decree. Salary when due is such a debt and would, therefore, be liable. But Section 60 contains an important proviso, viz., Provided that the following particulars shall not be liable to such attachment or sale, namely:

(h) allowances (being less than salary) of any public Officer or of any servant of a railway company or local authority while absent from duty:

(i) the salary or allowances equal to salary of any such public Officer or servant as is referred to in Clause (h), while on duty to the extent of

(i) the whole of the salary, where the salary does not exceed twenty rupees monthly;

(ii) twenty rupees monthly, where the salary exceeds twenty rupees and does not exceed forty rupees monthly; and

(iii) one moiety of the salary in any other case;

Explanation. The particulars mentioned in Clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable.

17. 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, 24 C. 102 : 1 C.W.N. 138. In Watson v. Lloyd 25 M. 402 the Madras High Court held that the case of Calcutta Trades Association v. Ryland 24 C. 102 : 1 C.W.N. 138 was rightly decided and followed it.

18. In both of these cases, however, the judgment-debtor was a Military Officer in the Indian Staff Corps.

19. In Calcutta Trades Association v. Ryland 24 C. 102 : 1 C.W.N. 138 Mr. Justice Sale draws a sharp distraction between an Officer of the Indian Staff Corps and an Officer of the Regular Forces.

20. Thus he says: 'It would appear that while the pay of an Officer of the Regular Forces is not liable to attachment the pay of an officer of the Indian Staff Corps is liable to attachment, the reason for the distinction between the two cases being that an Officer of the Staff Corps is a Public Officer within the meaning of Clause (h) of Section 266 of the Civil Procedure Code read with the interpretation clause, whereas an officer of the Regular Forces is not:' He would appear to rest the distinction upon a note furnished by the Registrar of the Calcutta High Court which he considered as giving a correct view of the law then existing upon the subject. Whether it be a correct view or not we are not in a position to say.

21. In neither case is any allusion made to the second proviso to Section 266 and re-produced as Clause 2(b) in Section 60 of the Civil Procedure Code, 1908

22. This proviso and clause lay down that nothing in Section 266 of the Code, 1882, and Section 60 of the Code, 1908, shall be deemed to affect the provisions of the Army Act or of any similar law for the time being in force.

23. It seems to us that this clause compels us to exclude Section 60 of the Civil Procedure Code, 1908, from our consideration in the present case and to hold that no deductions have been pointed out to us as authorized by the Army Act 1881, or any other Act or by any law passed by the Governor General of India in Council.

24. We allow the fifth and sixth pleas taken in the memorandum of appeals set aside the order of the Court below and direct that the application made by the respondent do stand dismissed.

25. The costs of the appellant will be borne by the respondent. Those costs will in this Court include fees on the higher scale.


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