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Babu Jag Mohan Lal Vs. Mt. Gomti - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad
Decided On
Reported inAIR1933All153
AppellantBabu Jag Mohan Lal
RespondentMt. Gomti
Excerpt:
- - the courts below accordingly were not satisfied that he had established that he had been enrolled under the act.sulaiman, j.1. this appeal has been filed from the order of the district judge passed in an appeal airing out of insolvency matter. on the face of it a second appeal does not lie at all because it did not raise any question which would bring it within the purview of section 4 of the act. the appeal as such is incompetent. it has however to be seen whether the judgment of the district judge can be said not to be according to law so as to empower me to interfere in revision. the appellant jagmohan lal has been declared an insolvent. the respondent mt. gomti holds a decree against him and she applied to the insolvency court for attachment of jagmohan lal's pay. unfortunately in the proceedings which were taken in the courts below the receiver does not appear to have been made a party and he.....
Judgment:

Sulaiman, J.

1. This appeal has been filed from the order of the District Judge passed in an appeal airing out of insolvency matter. On the face of it a second appeal does not lie at all because it did not raise any question which would bring it within the purview of Section 4 of the Act. The appeal as such is incompetent. It has however to be seen whether the judgment of the District Judge can be said not to be according to law so as to empower me to interfere in revision. The appellant Jagmohan Lal has been declared an insolvent. The respondent Mt. Gomti holds a decree against him and she applied to the insolvency Court for attachment of Jagmohan Lal's pay. Unfortunately in the proceedings which were taken in the Courts below the receiver does not appear to have been made a party and he has also been left out from this appeal. When an Official Receiver has been appointed he represents the whole body of creditors and it is he who should move in the matter, though it is open to a creditor to bring any matter to the notice of the Official Receiver or of the Court.

2. Jagmohan Lal is an accountant employed in 3/11th Sikh Regiment. He claimed that he was enrolled under the Army Act and his salary was exempt from attachment. Under Section 60 (j), Civil P.C., the pay and allowance of persons to whom the Articles of War apply shall not be attached. The Articles of War were replaced by the Army Act (Act No. 8 of 1911). Under Section 120 of that Act the. pay and allowance of any person subject to that Act cannot be attached by any Court in satisfaction of a decree against him. The main question was whether Jagmohan Lal was a person subject to the Act within the meaning of Section 2. Both the Courts below have held that the evidence produced by him is insufficient to show that he had been enrolled under the Act. He produced a form which was applicable to accountants, clerks, cashiers, copyists, agents, store keepers, and all other civilian employees, and he also showed that he had executed a bond in favour of the military authorities. He however did not produce any enrolment certificate nor any other thing to show that he had been enrolled under the Army Act. The Courts below accordingly were not satisfied that he had established that he had been enrolled under the Act. The question primarily being one of fact I am not disposed to interfere with the findings of the Courts below when the evidence produced by him was meagre. It however appears that in reply to a letter of the District Judge, dated 15th January 1931, the Officer Commanding the Regiment then at Landikotal, Khaibar Pass, wrote on 7th February 1931 informing the District Judge that Jagmohan Lal was

serving in the unit under his command as unit accountant at Landikotal, a military frontier pass under the Army Act.

3. This letter suggested that the insolvent was at the time employed in the service of his Majesty's Forces on the Frontier. On the strength of this letter the learned advocate for the appellant contends that the case comes within the scope of Section 2(c). Prima facie there appears to be force in this contention. Even if Jagmohan Lal was not employed on the frontier and his pay during the earlier period might have been liable to attachment, it would be exempt from attachment as soon as he was employed

at any frontier pass specified by the Governor-General in Council by notification in this behalf.

4. There is no doubt that Landikotal has been notified as being such a frontier pass. The point was perhaps not directly raised before the District Judge. At any rate there is no clear reference to it in the judgment. But as the attachment of his pay, while employed at the frontier pass, would be illegal and the order, if allowed to stand, may be operative in future, I would set aside the order and send the case back to the District Judge for final disposal. As the point was not raised by Jagmohan Lal in express terms, I would direct that the parties should bear their own costs in all the Courts.


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