Ayyavayyar vs Virasami Mudali

In this case Rs. 10. a month of the salary or wages of a peon in the Arni Jaghir have been attached in advance in execution of a decree.

The District Judge has confirmed the order of the District Munsif and this is an appeal from that decision.

We are of opinion that the decision is wrong and that, u/s 266, Civil Procedure Code, no salary can be attached until it becomes due and a debt

exists. There is nothing in Section 266 of the CPC to alter the pre-existing law in this respect.

It is suggested that, inasmuch as by the proviso to Section 266, the salary of public officers and of servants of a Railway Company is in part only

made not liable to attachment, and the wages of labourers and domestic servants are entirely made not liable to attachment, it must be assumed

that the wages of others who are not included in the proviso are liable to attachment before they have become due and are debts. This, we think, is

a fallacy. There is nothing whatever in the Section to indicate that the salary of public officers or of railway servants can be attached before it is

due. That can only be done by virtue of the special provision in Section 268. The whole meaning of the proviso to Section 266 is made clear by

the explanation. Read with that, the proviso beginning at (g) and going to (m) means that though (g) stipends and gratuities, (h) salaries of public

officers and railway servants, (i) pay and allowances of persons to whom the Native Articles of War apply, (j) wages of labourers and domestic

servants, (k) contingent rights and interests, (1) rights to future maintenance, (m) any allowance, etc.,--all, in fact, at some time or another become

existing debts (i.e., when payable), they are even then not liable to attachment. It nowhere says that the salary of a public officer or a railway

servant is liable to attachment in advance, nor in our opinion was anything of the kind intended. The Munsif''s judgment is entirely based upon a

misapprehension of the decision in the case he refers to--Tejram Jagrupaji v Kusaji Gangji 7 Bom. H.C.R. (A.C.J)., 110. That case does not

decide that the whole of a peon''s wages may be attached in advance, when it is what he calls a thing in potential. What the case decides is that the

whole of a peon''s wages may be attached as it becomes due and it decides no more. We have been unable to find any case in which salary or

wages have been attached in advance of their becoming due, except u/s 268, Civil Procedure Code, which does not apply to this case but only to

the case of the salaries of a public officer or a railway servant. The petitioner is not a public officer or a railway servant but a private peon.

We are therefore of opinion that the appeal should be allowed and the attachment set aside with costs throughout.