JUDGMENT

Niamatullah, J. - This is a reference by the learned Judge of the Small Cause Court, Jhansi, under Order 46, Rule 1, Civil P.C. The learned Judge has not formulated the question on which the opinion of this Court is desired. Order 46, Rule 1, requires the Court making the reference to:

draw up a statement of the facts of the case and the point on which doubt is entertained.

2. We gather from the order of reference that one Hussain Bux obtained on 9th June 1932, a decree for Rs. 33-8-0 against Mr. Briggen Shaw No. 14, A.T. Cavalry, C.P. Mule, Quetta, Baluchistan. The decree-holder applied on 24th June 1932, for execution of his decree by attachment of the judgment-debtor's salary which was mentioned to be Rs. 300 a month approximately. The learned Judge of the Small Cause Court at Jhansi, who had passed the decree and to whom the application for execution was made, issued a notice to the judgment-debtor to:

show cause on or before the 5th August 1932 why the amount of Rs,. 39-1-0 (which included the original sum claimed as costs and interest) should not be realized by attaching your pay.

3. It should be noted that the law did not require a notice of this kind to be issued in the circumstances of this case. It is only where a case falls within: the purview of Order 21, Rule 22, Civil P. C., that a notice is necessary before any process of execution can issue. Execution was applied for only two weeks after the passing of the decree and against the judgment-debtor himself but the learned Judge issued a notice by way of courtsey. The judgment-debtor should have acknowledged receipt of the notice and if so advised should have objected to his salary being attached by the ordinary process recognised by law. He adopted the extraordinary, and, we are bound to say, disrespectful procedure of making the following note on the back of the notice received by him:

Reference reverse.

1. It is pointed out that my pay cannot be attached for debits and that traders allowing credit to serving soldiers, do so at their own risk.

2. It was pointed out to this man and he was told that if he wrote to the person that incurred the debt with him he would receive payment.

4. It should be observed that no reference is made to any. law under which the judgment-debtor claimed protection against the attachment of his pay. At the hearing a reference was made by the decree-holder's pleader to the case of F.B.D. Hay v. Ram Chandar (1917) 39 All 308, in which it was definitely held that the pay of an officer of the Indian Army may be attached in execution of a decree against him to the extent of one-half. The learned Judge had also before him general letter No. 5/44-9 (1917) 39 All 308 of 1930, dated 10th February 1930, from the registrar of this Court to all District Judges subordinate to the High Court of Judicature at Allahabad, which he thought was somewhat in conflict with the case above referred to. This letter was circulated to all judicial officers to invite their attention to the provisions of Section 120, Indian Army Act, 8 of 1911, under which the pay and allowances of persons subject to that Act are exempt from, attachment. The learned Judge was apparently under a misapprehension as to whether the Indian Army Act and the General Letter to which reference has been made by him have any relevancy in the present case. The judgment-debtor does not claim to be a person subject to the provisions of the Indian Army Act, 8 of 1911. Persons who are so subject are described in Section 2 of that Act and in view of what the judgment-debtor subsequently noted on the back of a notice issued by this Court, we do not wish to consider the provisions of Section 120 of Act 8 of 1911, in any detail.

5. In the concluding part of his reference the learned Judge observed that:

reasonable doubt is entertained if the pay of the judgment-debtor in this case is attachable or not.

6. He proceeded to express his own opinion that: "it should be attachable as otherwise the decrees of t