1. Madam Pearce, a Milliner of Agra, sued Assistant. Surgeon Browne, a member of the Indian Medical Department, for a sum of about Rs. 40. There are no particulars before us to show us the date or the actual amount, but at all events at the time when the judgment-creditor was seeking to recover the money by attachment the sum was then Rs. 46-6-0.
2. An application was made to the Small Cause Court Judge asking for the attachment of part of the pay of this Assistant Surgeon. That attachment issued, and when the papers arrived at head-quarters the authorities there refused to recognize the order of the Court, contending that the pay of the Assistant Surgeon was not attachable. Certain correspondence followed, and eventually the Government pleader was instructed to lodge objections to the attachment of the judgment-debtor's pay. Those objections were dated 21st October 1924, and seemed to treat the matter on the basis that this Assistant Surgeon was subject to the provisions of the Indian Army Act. On argument, the Small Cause Court seems to have been to some extent embarrassed by want of authorities and eventually the Judge decided to disallow the objection. Thereupon the matter has come up here in revision.
3. The point really is a very short one, and we may as well treat it under both heads of the English authorities and the Indian, because Mr. Dillon whilst putting forward the view that the Assistant Surgeon is in fact recruited under British conditions agrees that it is possible he might have been recruited in India. In effect the position is precisely the same. An Assistant Surgeon is a Warrant Officer and is so described in Army Regns. Vol. 2, p. 132. Whatever his grade, be it 1st, 2nd, 3rd, or 4th Class, he is a Warrant Officer. Whether in the British or Indian Army he is alike a Warrant Officer. As regards the British Army he undoubtedly comes under the generic title of 'soldier' as distinguished from 'officer', the latter word being used as applicable only to those who hold His Majesty's commission. A reference to the Army Act of 1881(44 & 45, Vict. Ch. 58), Section 190, Clause (6), shows that
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... does include a Warrant Officer not having an Honorary Commission.
4. The Assistant Surgeon in this case is a Warrant Officer who does not hold an Honorary Commission. He, therefore, is in the Army Act designated as a 'soldier' and subject to the legislation enacted for 'soldiers.' By Section 136, of the same Act it is prescribed that the pay of an officer or soldier of Her Majesty's Regular Force shall be paid without any deduction other than the deductions authorized by this or any other Act or by any Royal Warrant for the time being. To that section must be added in virtue of the provision of the Army Act (58 Vict. Ch. 7) Section 4, 'or by any law passed by the Governor-General of India in Council.'
5. Therefore, so far as we have gone it is perfectly clear that unless there has been some law passed by the Governor-General of India in Council, the pay of a British soldier of His Majesty's Regular Force serving in India cannot be the subject of attachment.
6. Attachment is dealt with in Section 60, Civil P.C., and in the proviso to that section certain salaries of certain public officers or servants are attachable to a certain extent. Section 2, Clause (17) describes who are the public officers who fall under the description of persons whose salaries are attachable. Sub-head (c) of Clause 17 is as follows:
Every Commissioned or Gazetted Officer in the military or naval forces of His Majesty... while serving under the Government.
7. Now it is obvious that the clause does not include Assistant Surgeon Browne, because ho is not a Commissioned Officer. But it has been suggested that the enactments known as the C.P.C., was in fact a law passed by the Governor-General of India in Council, and if so Section 17(c) might be read as making the pay of Commissioned Officers in the military forces of His Majesty serving in this country, liable to attachment. We understand, although it is not necessary for our decision, that a Commissioned Officer of His Majesty's forces serving in a British Regiment is not technically serving under the Government, and that is why the provision in the C.P.C., Section 60, is not applicable to him. We understand also, though it is not also necessary for our decision, that a British Officer who passes into the service of an Indian Regiment, and thus is serving under the Indian Government is liable to have his pay attached. We have thought fit to mention this because had we not said something of this character, it might have been assumed that Assistant Surgeon Browne escaped simply on the ground that he was not a Commissioned Officer, and that had he happened to have held an Honorary Commission he would have been liable to have his pay attached.
8. Now, on the assumption that he was an Assistant Surgeon recruited in India, we find the position to be the same. Section 120 of Act 8 of 1911 says that the pay and allowances of any person subject to this Act shall not be attached by direction of any Civil or Revenue Court in satisfaction of any decree or order enforceable against him. Section 2 of the same Act mentions Warrant Officers specifically as persons subject to it. Under the provisions of this Act, therefore, Assistant Surgeon Browne is clearly included and his pay is not attachable even on the assumption that he was recruited in India. Further a reference to Section 60(j) shows that no attachment can issue as regards pay and allowances of persons to whom the Indian Articles of War applied. Act 5 of 1869 was described as the Indian Articles of War a description also continued in the amended Act 12 of 1894. Both of the Acts have been repealed, and the present Act is Act 8 of 1911, to which we have just referred. That is styled the Indian Army Act. So that there is no doubt that the reference in the C.P.C., wherein the statutes are described as the Indian Articles of War must now be regarded as referring to Act 8 of 1911. In these circumstances we are of opinion that this revision must be allowed and that the salary of this Assistant Surgeon was not attachable. The money which has been paid under protest by the Controller of Military Accounts, Meerut, must be refunded.