1. This is a reference by the learned Judge of the Small Cause Court, Jhansi, under Order 46, Rule 1, Civil P.C. The learned Judge has not formulated the question on which the opinion of this Court is desired. Order 46, Rule 1, requires the Court making the reference to:
draw up a statement of the facts of the case and the point on which doubt is entertained.
2. We gather from the order of reference that one Hussain Bux obtained on 9th June 1932, a decree for Rs. 33-8-0 against Mr. Briggen Shaw No. 14, A.T. Cavalry, C.P. Mule, Quetta, Baluchistan. The decree-holder applied on 24th June 1932, for execution of his decree by attachment of the judgment-debtor's salary which was mentioned to be Rs. 300 a month approximately. The learned Judge of the Small Cause Court at Jhansi, who had passed the decree and to whom the application for execution was made, issued a notice to the judgment-debtor to:
show cause on or before the 5th August 1932 why the amount of Rs,. 39-1-0 (which included the original sum claimed as costs and interest) should not be realized by attaching your pay.
3. It should be noted that the law did not require a notice of this kind to be issued in the circumstances of this case. It is only where a case falls within: the purview of Order 21, Rule 22, Civil P. C., that a notice is necessary before any process of execution can issue. Execution was applied for only two weeks after the passing of the decree and against the judgment-debtor himself but the learned Judge issued a notice by way of courtsey. The judgment-debtor should have acknowledged receipt of the notice and if so advised should have objected to his salary being attached by the ordinary process recognised by law. He adopted the extraordinary, and, we are bound to say, disrespectful procedure of making the following note on the back of the notice received by him:
1. It is pointed out that my pay cannot be attached for debits and that traders allowing credit to serving soldiers, do so at their own risk.
2. It was pointed out to this man and he was told that if he wrote to the person that incurred the debt with him he would receive payment.
4. It should be observed that no reference is made to any. law under which the judgment-debtor claimed protection against the attachment of his pay. At the hearing a reference was made by the decree-holder's pleader to the case of F.B.D. Hay v. Ram Chandar (1917) 39 All 308, in which it was definitely held that the pay of an officer of the Indian Army may be attached in execution of a decree against him to the extent of one-half. The learned Judge had also before him general letter No. 5/44-9 (1917) 39 All 308 of 1930, dated 10th February 1930, from the registrar of this Court to all District Judges subordinate to the High Court of Judicature at Allahabad, which he thought was somewhat in conflict with the case above referred to. This letter was circulated to all judicial officers to invite their attention to the provisions of Section 120, Indian Army Act, 8 of 1911, under which the pay and allowances of persons subject to that Act are exempt from, attachment. The learned Judge was apparently under a misapprehension as to whether the Indian Army Act and the General Letter to which reference has been made by him have any relevancy in the present case. The judgment-debtor does not claim to be a person subject to the provisions of the Indian Army Act, 8 of 1911. Persons who are so subject are described in Section 2 of that Act and in view of what the judgment-debtor subsequently noted on the back of a notice issued by this Court, we do not wish to consider the provisions of Section 120 of Act 8 of 1911, in any detail.
5. In the concluding part of his reference the learned Judge observed that:
reasonable doubt is entertained if the pay of the judgment-debtor in this case is attachable or not.
6. He proceeded to express his own opinion that: 'it should be attachable as otherwise the decrees of the Civil Courts would be nugatory.' It is not the object of Order 46, Rule 1, Civil P.C. that Subordinate Courts should be enabled to relieve themselves of the necessity of deciding difficult, questions arising before them to make a reference to the High Court calling upon it to do what could have been done by the Subordinate Courts. If we were to take a strict view of the reference before us we might return it directing the Subordinate Judge to give effect to the opinion which he has expressed in the order of reference but we accept his statement that he entertains a reasonable doubt as to whether the judgment-debtor's salary is attachable in the present instance. On receipt of the reference a notice was issued by the High Court office under the signature of the deputy registrar to the judgment-debtor informing him that a certain date had been fixed for the disposal of the reference and that he should:
appear in person or by an advocate duly prepared to inform the Honourable Court on the aforesaid date whether the judgment-debtor is or is not a person to whom the Indian Articles of War apply, that you should also supply the materials on which the information is based, and that the case will be laid before the Court for disposal on such date or as soon thereafter as the same may be heard.
7. The notice was served through the commanding officer on 5th December 1932. The endorsement of receipt of notice has been made in the following words:
1. Certified that I have been served with the duplicate of this form,
2. I have no knowledge of the case under reference.
3. Certified that I am a soldier serving under a normal period of engagement and subject to the Army Act.
8. The notice served upon him showed that it had been issued under the orders of the Hon'ble Acting Chief Justice and Bennet, J. It is, difficult to accept that part of the endorsement in which the judgment-debtor stated that he had no knowledge of the case under reference. He knew that a decree had been obtained by Hussain Bux. He also knew that an application for execution had been made. A notice had been issued by the Court passing the decree on the back of which he noted his reply which has been quoted by us in full. The notice issued by this Court has clearly given the description of the suit to which it relates: 'Hussafan Bux v. Briggen Shaw.' It did not require any extensive knowledge of the usual procedure of Courts that a litigant on whom the notice is served is merely to acknowledge it and that he is not expected to 'certify' as to certain matters which he might think to be relevant. It was his duty to have arranged for appearance in Court on his behalf. He was distinctly required by the notices to:
9. No communication relating to a judiciary matter can be received and no action can be taken on it unless it is formally made. The information conveyed to us by the 'certificate' noted on the back of the notice is that the judgment-debtor is 'a soldier serving under a normal period of engagement and subject to the Army Act.' We may note at once that the Act referred by him is not the Indian Army Act 8 of 1911, to which reference has been made by the learned Judge of the Court below. The Act which is relied on by the judgment-debtor is the Army Act of 1881, 44 and 45 Victoria, Ch. 58. The question which calls for an answer therefore is whether a soldier to whom the Army Act applies is protected so far as the attachment of his pay and allowances is concerned. Section 136, Army Act, as it originally stood provided that:
the pay of an officer or soldier in His Majesty's regular forces shall be paid without any deductions other than the deductions authorized by this or any other Act or by any rule warrant for the time being.
10. This section was amended by the Army Amendment Act of 1895, Section 4 of which added the words 'or by any law passed by the Governor-General in Council.' Accordingly, if any Act of the Governor-General made it permissible that part of the salary of an officer or soldier to whom the Army Act applied be deducted, the amended Section 136 cannot come in conflict with it. 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 be 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. Civil Procedure Code is an Act of 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 Civil Procedure Code permits the same being done. Section 60(1), Civil P.C., provides, inter alia, that: ' save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits o which, he has a disposing power which he may exercise for his own benefit......' may be attached in execution of a decree. There can be no doubt that the salary of an officer or soldier, to whom the Army Act applies, as and when it becomes payable to him, is ' property over which he has a disposing power' and that, except so far that it is protected by the proviso to that section, it is declared attachable by the opening part of Section 60(1). The proviso to this section exetmpts certain property from attachment. One of the exemptions is contained in Clause (1), which declares a portion of the salary and allowances of 'public officers' drawing more than a minimum amount to be not attachable. An officer or soldier to whom the Army Act applies is a public officer within the meaning of the afore- said section. The term 'public officer,' is defined in Section 2(17), Civil P.C. 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). We are unable to say whether the judgment-debtor in this case falls within any of the clauses of Section 2(17), Civil P.C., assuming he is one, his salary to the extent of half can be attached, as his salary is said to be Rs. 300 a month. We may note in this connection that Clause (j) of the proviso to Section 60(1), Civil P.C., which refers to Act 8 of 1911 (Army Act), does not apply to the judgment-debtor, who. claims to be subject to the Army Act.
11. Our view is supported by Lt. E.G.A. Prins v. Murray and Co. Ltd. AIR 1914 Oudh 199, decided by a Bench of the late Court of the. Judicial Commissioner of Oudh, which has been followed by a Bench of this Court in H.F.B.D. Hay v. Ram Chandar (1917) 39 All 308. The lastmentioned case does not however decide the point which has arisen before us. It has reference to a case to which the Army Act was applicable. Our view finds further support from Kering Rupchdnd & Co. v. G.B. Murray AIR 1918 Bom 32, decided by the Bombay High Court. We have considered A.L. Browne v. H.A. Pearce AIR 1936 All 122, decided by a Division Bench of this Court, in which: it was held that as the judgment-debtor, who was a Military Assistant Surgeon, was not a 'public officer' within the meaning of Section 60(1)(h) and (i), Civil P.C., and therefore no portion of his salary was attachable. With great respect we would point out that the decision in that case proceeds on a misapprehension of the effect of the proviso to Section 60(1), Civil P.C., as the following passage, taken from the judgment in that case will clearly show:
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(17) describes whether the public officers who fall under the descriptions of persons whos9 salaries are attachble....
12. The learned Judges proceeded on the assumption that the proviso to Section 60(1) permits attachment of property in the cases therein specified. It will be observed that the proviso merely exempts certain property from attachment, including part of the salary and allowances of public officers. If a property, salary or otherwise, does not fall within any of the clauses of the proviso, the general provisions contained in Section 60(1) shall prevail, and the same shall be attachable. In the circumstances discussed above, our answer to the reference is that 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.