SATYAPRIYA BANERJEE Vs. KUNDANMULL BABU

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of Rajshahi made on 25th September 1937 whereby he held that the appellant Satyapriya Banerjee, the judgment- debtor who is a member of the Legislative Assembly, Bengal, is a public officer and as such liable to have his pay attached under Order 21, Rule 48, Civil P.C. The learned Judge made an order that the Accountant-General of Bengal, should out of the monthly salary of Rs. 150 payable to the appellant remit a sum of Rs. 50 each month to the Court until the amount under the decree is satisfied. The appellant is a member of the Bengal Legislative Assembly. A decree was passed against him at the instance of the respondent on 24 May 1933 for the sum of Rs. 6398 on a hand-note. On 17 September 1937 the decree-holder stated that a sum of Rs. 4441-4-3 was still payable under the decree and asked for the attachment of half of the appellant's salary as a member of the Legislative Assembly. The learned Judge made the order stated above. The appellant has appealed against that order contending that he is not a public officer and is not liable to have his salary as an M. L. A. attached under Order 21, Rule 48, Civil P.C. Section 2, Sub-section 17, Civil P.C. defines the words "public officer." It has been contended by the respondent that the appellant comes within Sub-para (h), namely: Every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty.

(2.) The Bengal Legislative Chambers (Members Emoluments) Act, 1937, provides in para. 3 as follows: There shall be paid to each member a salary at the rate of Rs. 150 per mensem with effect from the date on which he takes his oath.

(3.) Section 4 of the same Act provides for certain allowances to be paid to members. It is true that the appellant receives remuneration in respect of his membership in the Legislative Assembly. The question is whether he is an officer within the meaning of Section 2, Sub- section 17(h), Civil P.C. In Hollonshead V/s. Hazleton (1916) 1 A.C. 428 the question arose whether in bankruptcy proceedings in Ireland a member of Parliament could be ordered to pay a sum of ?200 a year out of his salary of ?400 a year as an M. P. to the Official Assignee in Bankruptcy. It was held by the House of Lords that a Member of Parliament could be ordered to make such a payment. During the discussion there was some consideration, not very extensive it is true, of the position of a member of Parliament. At p. 460 Lord Parker of Waddington said: "The payment is made to and received by every member virtute officii...." That sentence clearly suggests that a member of Parliament is the holder of an office. However on p. 439 Lord Atkinson used these words: Palles C.B. in his judgment laid it down that this sum of ?100 per annum is expressly given to each Member of Parliament virtute officii, and is payable out of State funds to enable them to support the office with the degree of dignity due to it, and for that reason is inalienable. It is certainly given to the members because they are members, but with infinite respect for that most distinguished Judge, I doubt very much whether membership of the House of Commons is, within the meaning of the principle of law and public policy to which he refers, an office of State at all.