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Jnanendra Kumar Roy Vs. Akash Chandra Chowdhuri and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal325
AppellantJnanendra Kumar Roy
RespondentAkash Chandra Chowdhuri and anr.
Excerpt:
- .....in this connexion, and this is as to whether the word 'salary' in the new clause (h) is used of salary generally without any reference to the class of persons by whom the salary is earned, or it refers merely to the salary of 'labourers and domestic servants.' the present insolvent is neither a labourer nor a domestic servant, but a head clerk in a tea estate, and if the word 'salary' in clause (h) bears a restricted interpretation, he cannot obviously claim the benefit of it. i do not however desire to express any final opinion on the point. all that i need say is that from the collocation of the words used in this clause, it is fairly arguable that the word 'salary' is intended to mean salary of labourers and domestic servants only, seeing that the clause appears to be enacted for the.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal against an order passed by the District Judge of Sylhet in exercise of his insolvency jurisdiction on 26th May 1937. The facts are simple. The appellant before us who is the debtor presented an application for insolvency on 21st December 1936. On 3rd April 1937, he was adjudicated an insolvent and a pleader named Md. Neser Ali was appointed receiver. There was a direction on the insolvent to deliver all the assets stated in his petition to the receiver forthwith and also to pay Rs. 60 each month out of his salary to the receiver. On 19th May 1937 the appellant filed a petition for reconsideration of this order basing his case upon the Amending Act 9 of 1937 which introduced certain changes in Section 60, Civil P.C. His contention was that as under Clause (h), Section 60 the wages of labourers were exempted from attachment to the extent of first hundred rupees and one-half of the remainder, he could not be compelled to pay more than rupees five a month which was half of rupees ten which remained after the first hundred of his salary. This petition was rejected on 26th May 1937 and against this order, the present appeal has been preferred. Mr. Chatterjee who' has appeared for the appellant has reiterated the contention which his client put forward before the District Judge and has argued that under Section 28, Provincial Insolvency Act, the property of the insolvent which is exempted by Code of Civil Procedure from liability to attachment and sale in execution of a decree cannot rank as assets of the insolvent and hence cannot vest in the receiver in law. The proposition enunciated by Mr. Chatterjee is sound but in our opinion it does not help him in the present case. The test to determine as to whether this property was the property of the insolvent or not would be as to whether or not it was liable to be attached and sold in execution of a decree at the date when the attachment order was passed. In other words we are to imagine that a decree was in existence at the date when the adjudication order was made and if in execution of that decree this property was not liable to be attached or sold, it was exempted under Sub-section (5) of Section 28, Provincial Insolvency Act.

2. So far as the Amending Act 9 of 1937 is concerned, to which our attention has been drawn by Mr. Chatterjee, it lays down in Section 3 an important provision providing that the amendments made by Section 2 [which introduced Clause (h) in the section] shall not have effect in respect of any proceedings arising out of any suit instituted before 1st June 1937. We are in agreement with Mr. Chatterjee in holding that the insolvency case cannot be described as a 'suit or any proceeding arising out of it. But that really is not material. What is necessary for us to consider is this, whether or not under the provision of Section 3 of this Amending Act 9 of 1937 a decree against the debtor in existence on 3rd April 1937 could be executed by attaching a sum of Rs. 60 out of the salary of Rs. 110 enjoyed by him. We are of opinion that Section 3 definitely lays down that this amended provision would not have any operation in respect of any suit or any proceeding arising .out of the same when the suit itself has commenced prior to 1st June 1937. Ex hypothesi, the decree in existence on 3rd April 1937 could not have been passed in a suit which was commenced later than 1st June 1937. Under the circumstances, we are of opinion that the view taken by the [District Judge is correct and the appeal [must stand dismissed. We make no order as to costs in this appeal.

Biswas, J.

3. I agree. The Judge in insolvency made a very reasonable order in the case. It was that the insolvent should pay into the hands of the receiver in insolvency a sum of Rs. 60 out of his pay of Rs. 110 each month. The insolvent encouraged probably by the ever-increasing indulgence to debtors, which seems to be the policy of the Legislature now, applied for re-consideration of the order, claiming that under the new Amending Act 9 of 1937 the maximum out of his salary which could vest in the receiver was only Rs. 5. His contention was that he was entitled to the benefit of this amending legislation. What property vests or does not vest in the receiver in insolvency on the making of an order of adjudication is laid down in Section 28, Provincial Insolvency Act. Sub-section (5) of this section provides that the property of the insolvent: which vests in the receiver under this section shall not include any property which is exempted by the Civil Procedure Code, 1908, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree.

4. What property is exempted from attachment and sale in execution of a decree under the Civil Procedure Code is to be found in the proviso to Section 60 of the Code. It is not disputed that under the Civil Procedure Code, as it stood before the new Amending Act 9 of 1937, the salary of the insolvent to the extent of Rs. 60 would be attachable and saleable, and no exception could be taken to an order vesting the same in the receiver, but the petitioner claims that Act 9 of 1937 has effected a change in the law in favour of the debtor. Section 2 of this Amending Act has substituted a new Clause (h) in the Proviso to Section 60, Civil P.C. This new clause is in these terms:

(h) the wages of labourers and domestic servants whether payable in money or in kind; and salary to the extent of the first hundred rupees and one-half the remainder of such salary.

5. The question is whether the insolvent can claim the benefit of this clause in the present case. Act 9 of 1937 received the assent of the Governor-General on 4th March 1937. The adjudication order was made on 3rd April following. In the absence of anything to the contrary, the new Act would apply to this case. As the learned Judge however points out there is an important section in the Amending Act which affects the question. It is Section 3. This section provides as follows:

(8) The amendments made by Section 2 shall not have effect in respect of any proceedings arising out of any suit instituted before the first day of June, nineteen hundred and thirty-seven.

6. This clearly shows that the amendments introduced by this Act were not intended to be operative all at once, but that their operation was expressly made prospective'. Not only are proceedings in execution, which might be pending on 1st June 1937, saved from the operation of the amending legislation, but also proceedings of even a later date, provided they are proceedings arising out of a suit instituted before 1st June 1937. Mr. Chatterjee argues that the present case is not hit by this saving section, as it does not come within the words 'any proceedings arising out of any suit'. He maintains in the first place that an insolvency proceeding is not a 'suit', and secondly that even if it; may be regarded as a suit, the order in question is an order or proceeding arising in the suit itself, and not 'arising out of' the suit. Mr. Chatterjea is obviously under a misconception. We are not concerned here with the question as to whether the order complained of did or did not come within the terms of Section 3. The point which arises is whether or not the salary, which has been ordered to vest in the receiver, is excluded by the terms of Sub-section (5) of Section 28, Provincial Insolvency Act. As my learned brother has pointed out, the test for determining this will be whether or not on the day the order was made, the salary was liable to attachment and sale in execution of a decree; in other words, whether or not it was liable to attachment and sale in execution of a decree assumed to subsist on that date. On a plain reading of Section 3 of Act 9 of 1937, it is clear that if there was a decree against the insolvent on 3rd April 1937, the date on which the order complained of was made, the decree could be legally enforced by attachment and sale of the salary notwithstanding the said section. On a consideration of this matter, the questions raised by Mr. Chatterjee do not arise at all.

7. There is just one other point which occurs to me in this connexion, and this is as to whether the word 'salary' in the new Clause (h) is used of salary generally without any reference to the class of persons by whom the salary is earned, or it refers merely to the salary of 'labourers and domestic servants.' The present insolvent is neither a labourer nor a domestic servant, but a head clerk in a tea estate, and if the word 'salary' in Clause (h) bears a restricted interpretation, he cannot obviously claim the benefit of it. I do not however desire to express any final opinion on the point. All that I need say is that from the collocation of the words used in this clause, it is fairly arguable that the word 'salary' is intended to mean salary of labourers and domestic servants only, seeing that the clause appears to be enacted for the benefit of this particular class of persons.


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