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Report No. 27

46. Human factor re-emphasised.-Before parting with the topic of delay, we would again emphasise the part which the human factor plays in the efficient and impartial administration of justice. It need hardly be stated, that the success or failure of any procedural law depends upon the men who administer it. A law of procedure, however perfect, will fail in its purpose unless the men who administer it are men of ability and are imbued with a missionary zeal for doing justice, and unless they receive in this task the co-operation of members of the Bar. If the Judges are high-minded, able and fearless, and if the members of the Bar also share their zeal, we have no doubt that the problem of delay, which now threatens to bring the entire administration of justice into disrepute, will be solved to the satisfaction of the litigating public and the community at large.

47. Other main changes.-Having dealt with the question of delay, we now proceed to explain the other main changes proposed by us in the Code of Civil Procedure, 1908.

48. Section 47 and constructive res judicata.-It has been held in several decisions, including one of the Supreme Court1, that the principle of constructive res judicata applies to execution proceedings. The Law Commission in its Fourteenth Report2, has recommended that statutory effect should be given to these decisions. We have, in pursuance of this recommendation3, proposed the necessary amendment.

1. Mohan Lal v. Benoy Krishna, 1953 SCR 377: AIR 1953 SC 65.

2. 14th Report, Vol. 1.

3. Appendix I, section 47.

49. Section 60.-Explanation I to section 60 provides that in the case of salary other than salary of a servant of the Government or a servant of a railway company or local authority, the attachable portion thereof is exempt from attachment until it is actually payable. The result is that while the salary of a Government servant, etc., is attachable before it is actually payable, the salary of other employees is not attachable until it is actually payable. Whatever may have been the reasons for this distinction in the past between the salary of a Government servant and other employees, those reasons no longer exist. In actual practice, it is well-nigh impossible to attach a salary when it is actually payable. In the case of employees other than Government servants, the condition that the salary cannot be attached until it is actually payable renders the provisions regarding attachment illusory and nugatory. We, therefore, recommend1 that the distinction between the attachability of the salary of a Government servant, etc., and other employees in this respect should be abolished.

1. Appendix I, section 60.

Code of Civil Procedure, 1908 Back

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