W.J. Edwards vs Bhaga Devaji and Co.

W. Baker, Acting C.J.

This is an application filed by the Government Pleader on behalf of Staff Sergeant Edwards against an order of the Court of Small Causes at Poona attaching his pay in execution of a decree obtained against him by the opponents. It is not necessary for us to deal with this matter at any length because there are two rulings of this Court, viz., Duckworth v. Duckworth ILR (1918) Bom. 368 21 Bom. L.R. 137 and Brown v. Hanson (1932) 35 Bom. L.R. 360 both of which are directly on the point before us. It was held in Brown v. Hanson, in which the previous cases were considered, that the pay of a First Class Warrant Officer to whom the Army Act applies is not attachable under a decree of a civil Court to the extent contained u/s 60(1)(i) of the Civil Procedure Code. This case does not seem to have been brought to the notice of the Judge of the Small Cause Court at Poona. Following the case of Brown v. Hanson we must hold that the pay of Staff Sergeant Edwards is not attachable under the decree of a civil Court.

The order of the Small Cause Court at Poona will, therefore, be set aside, the order of attachment will be vacated and the, rule made absolute with costs.

Divatia, J.

I agree. The lower Court has relied upon the decision in Kering Rupchand & Co. v. Murray ILR (1918) Bom. 716 21 Bom. L.R. 143 but that case would have no application here, for it was a case of an officer. Here, however, we have the case of a soldier which is expressly governed by another case in the same volume : Duckworth v. Duckworth ILR (1918) Bom. 368 21 Bom. L.R. 137: and even apart from that, reading Sections 136 and 144 of the Army Act together, I think that Section 136 is governed by the proviso to Section 144. Section 136 is general in its terms and subject to the other provisions of the Act, and therefore I think that he is not a public officer, and Section 60 of the CPC would not apply to him.