TMI Blog1947 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... said suit a decree by consent of parties was passed on 5th June 1944. The decree is in the following terms : The defendant should pay ₹ 90 and all costs of the suit to the plaintiff at ₹ 2 installment per month. The plaintiff is at liberty to recover his amount from the salary of the defendant at ₹ 2 per month by an attachment to that affect. Opponents 1-3 applied for execution of the said decree and prayed for an order directing the applicant, i. e., M. S. M. Railway Company, to withhold ₹ 2 every mouth from the salary of opponent No. 4 until the decree was satisfied on the basis of the consent decree and to remit the same to the Court. The Court issued the order of attachment on 9th September 1944. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkar wants to get over this difficulty by suggesting that the rule may hold good in decrees obtained after contest and not in decrees passed in terms of compromise. His argument is that a contract between the parties is not the less a contract and subject to the incidents of a contract because there is superadded to it the command of a Judge, If the compromise or contract in the terms of which the decree is passed is shown to be unlawful, the decree itself becomes unenforceable and the validity of such a decree can be challenged in execution. The decision in Lakshmanaswami Naidu v. Rangamma 26 Mad. 31, referred to above supports such a contention. 4. On the other hand, it is urged by Mr. B. Moropanth, the learned counsel for the opponen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent power in the Court to consider such an application. 5. If it is once held that a person not being a party to the decree against whom such an order is served can move the Court and challenge the validity of the order, and that the Court can entertain such an application under its inherent jurisdiction, the whole difficulty is solved. The decree under execution is not binding upon the applicant as he was not a party. 6. The question that now falls to be considered is this, viz., whether the Small Causes Court had jurisdiction to pass a decree in terms of the compromise which according to the applicant was unlawful. 7. Under Section 60(i), Civil P. C., the salary of a servant of a railway company to the extent of ₹ 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decretal amount was satisfied. The Court ordered the compromise to be recorded. In execution of this adjusted decree, the Small Causes Court at Poona sent an order under Order 21, Rule 48, Civil P. C., to the Post Master General, Bombay, directing him to send ₹ 6 every month to the Court in satisfaction of the decree against Gangaram. The Post Master applied to the Small Causes Court under Order 21, R. 58, to raise the attachment and cancel the order of attachment served upon him. It was held in that case that the Court had an inherent power to entertain such an application and that a public servant whose salary is exempt from attachment under Section 60(i), Civil P. C., cannot contract himself out of this statutory provision. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Post Master General, Bombay v. Chenmal Mayachand 43 Bom. L. R. 758: A.I.R 1941 Bom 389. That, however, does not appear to be correct. At p. 764 there are these observations: Order 21, Rule 48, is expressly subject to the provisions of Section 60 and all that he was doing was to bring to the Court's notice the illegality of the order especially as the Government would be liable for any sum, paid in contravention of this rule. That would not amount to sitting in judgment over the order. It is only an application by a person who would be affected by the order that it should be vacated on the ground of illegality. And further at p. 767 it is observed: ... the compromise being opposed to public policy, a decree giving effect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropanth that the exemptions from attachments under Section 60, Civil P. C. are not mandatory, and in support of this contention he relies upon the case in Bhagvandas v. Hathibai, 4 Bom. 25 wherein a house resided in by an agriculturist was mortgaged by him to his creditors, and there was a decree for the sale of the mortgaged property, and it was held that the sale could be justified in spite of Section 60, Civil P. C. or Section 266, old Civil P. C. on the ground that that property was specifically mortgaged by the agriculturist. But in Radhakisan Hakumji v. Balvant Ramji, 7 Bom. 530 it has been held by our Court that the house of an agriculturist was exempt from attachment Therefore, the contention that the exemption was not manda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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