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Dupagunta Subramaniam Vs. Govinda Petar Satyanadham and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported in(1942)1MLJ292
AppellantDupagunta Subramaniam
RespondentGovinda Petar Satyanadham and anr.
Cases ReferredGaekwar Baroda State Railway v. Hafiz Habib
Excerpt:
- - 1. an interesting question of law under section 60, civil procedure code arises for determination in this civil revision petition. if the privilege is purely personal, if the interests of third parties are not affected and in particular if there is no question) of public interest or policy, no doubt the maxim quitribet potest renunciare juri pro se introduction is good law. but where a privilege is conferred for reasons of public policy, it is very well settled that it cannot be waived......has held that although the agreement was proved, the object of the agreement was opposed to public policy inasmuch as the provisions of section 60 of the civil procedure code which prohibit attachment of salary of persons getting a salary of rs. 100 and less than rs. 100 a month, are based upon public policy and therefore an 'agreement in contravention of these provisions cannot be upheld by a court of law.3. the decree-holder has filed this petition for revising the order and his learned counsel, mr. appa rao argues that it is open to a judgment-debtor in the position of the defendant to waive the right conferred on him by section 60 and that therefore the agreement, ex. a, is strictly enforceable in law. in support of this contention he relies upon two decisions of the lahore.....
Judgment:

Kunhi Raman, J.

1. An interesting question of law under Section 60, Civil Procedure Code arises for determination in this civil revision petition. Since the respondent was not represented by advocate, Mr. Krishna Rao was asked to assist the Court by appearing as amicus curicae and he has very kindly placed before the Court all the authorities relevant to the point involved in the case.:

2. The question which the Court below had to decide was, whether an arrangement made by an employee of the Bezwada Municipality, who was drawing a salary of Rs. 100 a month, that his creditor who had obtained a decree against him may take Rs. 15 per month out of his salary in satisfaction of the decree, is. enforceable in law. The agreement between the parties was reduced to writing and Ex. A is the document that was relied on in the Court below. It professes to be a salary assignment deed which prima facie is opposed to the provisions of Section 6 of the Transfer of Property Act which prohibits assignment of salary or pension. In the body of the document, as already indicated, the creditor was given the power of collecting Rs. 15 a month out of the debtor's salary. To enforce this agreement, an execution petition was filed in the lower Court by the petitioner here, who is the decree-holder, for attaching Rs. 15 per month out of the Salary of the judgment-debtor who is the respondent here. Although notice was served on the judgment-debtor, he did not choose to appear in the Court below. The learned Subordinate Judge, however, has held that although the agreement was proved, the object of the agreement was opposed to public policy inasmuch as the provisions of Section 60 of the Civil Procedure Code which prohibit attachment of salary of persons getting a salary of Rs. 100 and less than Rs. 100 a month, are based upon public policy and therefore an 'agreement in contravention of these provisions cannot be upheld by a Court of law.

3. The decree-holder has filed this petition for revising the order and his learned Counsel, Mr. Appa Rao argues that it is open to a judgment-debtor in the position of the defendant to waive the right conferred on him by Section 60 and that therefore the agreement, Ex. A, is strictly enforceable in law. In support of this contention he relies upon two decisions of the Lahore High Court, The first is reported in Jagannath v. Alia Dad A.I.R. 1939 Lah. 539 and it was followed by a later decision reported in Rajindar Kumar v. Chetanlal A.I.R. 1940 Lah. 65. Both these decisions are of single Judges of that High Court who have followed the principle recognised in an earlier decision, of the same High Court reported in Chittar Mal v. Mt. Bam Devi A.I.R. 1935 Lah. 164 which is a decision of a Bench of two Judges. That decision, however, related to agricultural land which was sought to be attached and sold contrary to the provisions of Section 60, of the Code. The view taken in Lahore is that Section 60 imposes a prohibition against forcible attachment of property and that it is open to a person who has obtained the consent of the party for whose protection provision is made in Section 60 to effect an attachment, contrary to the provisions of the section. Mr. Krishna Rao, the learned Counsel who appears as amicus curiae, invites the' attention of the Court to a recent decision of a Bench of the Bombay High Court reported in Postmaster-General', Bombay v. Chenmal Mayachand I.L.R. (1941) Bom. 415 in which the question has been fully considered and the view taken by the Lahore High Court has been dissented from. In the leading judgment reliance was placed upon a passage in Halsbury's Laws of England, Hailsham Edition, Vol. IV, page 471, Section 869:

There are some choses in action which have never been assignable; and, broadly speaking, it may be said that the ground of their non-assign-ability is denoted by that comprehensive expression 'public policy'. Thus public policy forbids that effect should be given to assignments of pensions and salaries of public officers payable to them for the purpose of maintaining the dignity of their office or to assure a due discharge of its duties.

The judgment goes on to state as follows:

The question then is whether it is open to a person to contract himself out of these provisions or to waive their benefit. It is no doubt a general rule that anyone may renounce a law introduced for his own benefits But that rule applies only to rights and benefits of a personal and private nature created under an agreement or granted by law. There is a clear distinction between a contractual or a statutory right created in favour of a person for his own benefit and a right which is created on the ground of public interest and policy. The rule of waiver cannot apply to a prohibition based on public policy.

Broomfield, J., in his concurring judgment says:

If the privilege is purely personal, if the interests of third parties are not affected and in particular if there is no question) of public interest or policy, no doubt the maxim quitribet potest renunciare juri pro se introduction is good law. But where a privilege is conferred for reasons of public policy, it is very well settled that it cannot be waived.

In a case which arose under the Presidency Towns Insolvency Act the Official Assignee of Madras v. E.Y. D'Silva, in dealing with the question whether the Official Assignee can intercept the salary of an official who draws a salary below the limit prescribed by Section 60 of the Code, Krishnaswami Aiyangar, J., states as follows See citation in : AIR1941Mad906 :

I doubt whether the law will permit him to do so, for it seems to me that it is against the fundamental principle underlying Section 60 of the Insolvency Act and Section 60, Civil Procedure Code to allow him to seize any portion of an insolvent's salary which is below the attachable limit, as such a limit appears to my mind to have been fixed on public grounds to ensure the proper and efficient discharge of duty by a public servant.

In the case reported in Ashutosh Sikdar v. Behari Lal Kirtunia I.L.R.(1907) Cal. 61 Mookerjee, J., observes as follows at page 74:

When the object of the statute has been determined, if the statutory provision is not based on grounds of public policy, and is intended only for the benefit of a particular person or class of persons, the conditions prescribed by the statute are not considered as indispensable and may be waived, because every one has a right to waive, and to agree to waive, the advantage of a law or rule made solely for the benefit and protection; of the individual in his private capacity, and which may be dispensed with without infringement of any public right or public policy. This rule is expressed by the maxim of law, quitrbet potest renunoiare juri pro se introducto; (Any one can renounce a law introduced for his own benefit)....As was pointed out by Lord Westbury in Hunt v. Hunt (1862) 4 De G. F. and J. 221 : 45 E.R. 1168 the words 'pro se' were introduced into the maxim, 'to show that no man can renounce a right of which his duty to the public and the claims of society forbid the renunciation'.

In Mulla's Commentaries on Section 6 (f) of the Transfer of Property Act (Edition II, page 66), the learned author says:

It is opposed to public policy that a public officer should transfer the salary of his office, for the salary is given; for the purpose of upholding its dignity and the proper performance of its duties.

Then the case of Grenfell v. The Dean and Canons of Windsor (1840) 2 Beav. 544 : 48 E.E. 4292 is referred to and the following observations of Lord Langdale are quoted:

There are various cases in which public duties are concerned, in which it may be against public policy, that the income arising for the performance of those duties should be assigned; and for this simple reason, because the public is interested not only in the performance front time to time of the duties, but also in the fit state of preparation of the party having to perform them.

A similar question relating to the provisions of Sections 86 and 87, Civil Procedure Code came up before the Judicial Committee of the Privy Council in a case Gaekwar Baroda State Rod-way v. Hafiz Habib-ul-Haq (1938) 2 M.L.J. 11 : L.R. 65 LA. 182 :(1938) I.L.R. All. 601 (P.C.). There the question was whether H. H. the Gaekwar of Baroda could be said to have waived the provisions of these sections because there was no objection taken at the trial to the absence of a certificate signed by a secretary to the Government of India in token of the consent given by His Excellency the Governor-General. The suit was actually defended on the merits in the trial Court and evidence adduced on behalf of the Manager and Engineer in Chief of the State Railway but not on behalf of H.H. the Gaekwar of Baroda, who was the party against whom the suit was filed in reality though not in form. At page 6, 3, of the judgment their Lordships state as follows in dealing with, the contention that the objection must be deemed to have been waived:

No one purported to appear in the suit on behalf of H.H. the Gaekwar of Baroda and there is no ground for saying that he waived his privilege. Further, as already pointed out, the previsions relating to this matter are statutory. They are contained in Sections 86 and 87, Civil Procedure Code, they are imperative and having regard to the public purposes which they serve, they cannot, in their 'Lordships' opinion, be waived in the manner suggested by the High Court.

The provisions of Section 60, Civil Procedure Code, which are also imperative, are intended' to give protection to persons in the position of the respondent in the present case on grounds of public policy and not merely to confer a personal benefit upon them. I have no hesitation in following the decision of the Bombay High Court referred to above which is consistent with the principle laid down by their Lordships of the Privy Council in the case Gaekwar Baroda State Railway v. Hafiz Habib-ul-Haq (1938) 2 M.L.J. 11 : L.R. 65 LA. 182 : (1938) I.L.R. All. 601 (P.C.). In this view the finding of the Court below that the execution petition for attaching Rs. 15 out of the salary of the respondent should not be granted is correct and this civil revision petition must be dismissed.


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