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Major H.F.B.D. Hay Vs. Ram Chander - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.92
AppellantMajor H.F.B.D. Hay
RespondentRam Chander
Excerpt:
.....of indian army, whether attachable. - - but as this course is clearly justified by the provisions of section 19 of the same regulation, we do not think it necessary to keep the reference pending on that account. 402, which are clearly in favour of the creditor in the present case. moreover, it is to be observed that whatever difficulty has been felt by any of the learned judges with regard to the question now before us turned upon the wording of clause (6) of sub-section (2) section 60 of the code of civil procedure (act v of 1908). that sub-section has been repealed by the repealing and amending act x of 1914. on this ground as well as because we agree generally with the line of reasoning followed, and the conclusion arrived at, by the learned judges of the oudh court, we feel no..........no hesitation about answering the reference. in our opinion the decision of the ajmer court which has been referred to us was correct and the order attaching one half of the salary of the officer in question was rightly passed. the record may be returned with this answer.
Judgment:

1. This is a reference under Section 18 of the Ajmer Code (Regulation I of 1877). We have been obliged to consider the reference in the absence of the parties; but as this course is clearly justified by the provisions of Section 19 of the same Regulation, we do not think it necessary to keep the reference pending on that account. The question raised is whether one moiety of the pay of an officer of the Indian Army, while serving in this country, is attachable in execution of a decree under the Code of Civil Procedure. It is suggested in the order of reference that there has been a conflict of opinion on this point, and reference has been made to the case of Colonel Lecky v. Bank of Upper India Ltd. 9 Ind. Cas. 1023 ; 33 A. 529 ; 8 A.L.J. 487 and to a decision of the Bombay High Court reported as Velchand Chagan Lal v. Bourchier 17 Ind. Cas. 13 ; 37 B. 26 ; 14 Bom. L.R. 777. On the other hand, there are cases, viz., Calcutta Trades Association v. Ryland 24 C. 102 ; 1 C.W.N. 138 ; 12 Ind. Dec. (N.S.) 733, and Watson v. Lloyd 25 M. 402, which are clearly in favour of the creditor in the present case. We have also been referred to a decision of the Oudh Court in the case of Prins v. Murray if Co. Ltd. 23 Ind. Cas. 935 ; 1 O.L.J. 127 ; 17 O.C. 99, in which the whole question is thoroughly discussed on the basis of the law as it stood at the time when this decision was pronounced [vide Prins v. Murray & Co. Ltd. 23 Ind. Cas. 935 ; 1 O.L.J. 127 ; 17 O.C. 99]. It is worth while to note at once that the decision in Colonel Lecky's case 9 Ind. Cas. 1023 ; 33 A. 529 ; 8 A.L.J. 487 was to the effect that the salary of an officer of the Royal Artillery while serving in this country was not capable of attachment. The line of reasoning followed by the learned Judges may or may not affect the somewhat different issue now before us; but it is quite certain that the decision itself is no authority on the subject of the salary of an officer of the Indian Army. Moreover, it is to be observed that whatever difficulty has been felt by any of the learned Judges with regard to the question now before us turned upon the wording of Clause (6) of Sub-section (2) Section 60 of the Code of Civil Procedure (Act V of 1908). That sub-section has been repealed by the Repealing and Amending Act X of 1914. On this ground as well as because we agree generally with the line of reasoning followed, and the conclusion arrived at, by the learned Judges of the Oudh Court, we feel no hesitation about answering the reference. In our opinion the decision of the Ajmer Court which has been referred to us was correct and the order attaching one half of the salary of the officer in question was rightly passed. The record may be returned with this answer.


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