Gujarat High Court Civil Manual (subordinate court practice), 1960
The following Government of India Memorandum accompanying Government of India letter, Ministry of Home Affairs, No. 5051, Judicial, dated the 7th January 1954, regarding the legal position of persons belonging to the Armed Forces in the matter of arrest for debt., attachment of their pay and allowances and priority in disposal of litigation involving them, is reproduced for the guidance of subordinate Courts: (1) Cases have occurred where civil courts have issued orders attaching the pay and allowances of persons belonging to the Armed Forces. There have also been cases of delay by courts in the hearing and final disposal of cases involving such persons. The intention of this memorandum is to state in simple terms the existing provisions in regard to exemption from arrest for debt and attachment of pay and allowances and other property of persons belonging to the Armed Forces and the priority to be given by civil courts for the hearing and final disposal of any suits or other proceedings in which they may be involved. (2) The privileges granted to such persons by the Army and Air Force Acts, 1950 (Acts XLVI and XLV of 1950 respectively) are detailed below. These rights and privileges are in addition to any other rights and privileges conferred by any other law for the time being in force. (3) (a) Immunity from attachment.—Under section 28 of the Army/Air Force Act, no arms, clothes, equipment, accoutrements or necessaries of any person subject to either of these Acts nor any animal used by him for the discharge of his duties can be seized, nor can his pay and allowances or any part thereof be attached by direction of any civil or revenue court, or any revenue Officer in satisfaction of any decree or order enforceable against him. (b) Immunity from arrest for debt.—Section 29 of the Army/Air Force Act provides that no person subject to either of these Acts, so long as he belongs to the Armed Forces, can be arrested for debt under any process issued by, or by the authority of, a civil or revenue Court or a revenue Officer. Where, in spite of the above, any such arrest is made, the Court or the revenue Officer concerned, on receipt of a complaint by such person or by his superior Officer to that effect, may discharge him and award reasonable costs to the complainant. The costs may be recovered in like manner as if they were awarded to him by a decree against the person obtaining the process. No court fees are payable for the recovery of such costs. (c) Immunity of persons attending Courtmartial from arrest.—Under section 30 of the Army/Air Force Act, no presiding officer or member of a Courtmartial, no Judge, advocate, no party to any proceedings before a Courtmartial, or his legal practitioner or agent, and no witness acting in obedience to a summons to attend a Courtmartial, while proceeding to, attending or returning from, a Courtmartial, is liable to be arrested under civil or revenue process. If any such person is arrested under any such process, he may be discharged by order of the Courtmartial. (d) Priority in respect of Army/Air Force personnel's litigation.—Under section 32 of the Army/Air Force Act, on the presentation to any Court by or on behalf of any person subject to either of these Acts of a certificate, from the proper military/air force authority, of leave of absence having been granted to or applied for by him for the purpose of prosecuting or defending any suit or other proceeding in such Court, the Court shall, on the application of such person, arrange, so far as may be possible, for the hearing and final disposal of such suit or other proceedings within the period of the leave so granted or applied for. The certificate from the proper military/air force authority shall state the first and the last day of the leave or intended leave, and set forth a description of the case with respect to which the leave was granted or applied for. No fee is payable to the court in respect of the presentation of any such certificate, or of any application by or on behalf of any such person, for priority for the hearing of his case. Where the Court is unable to arrange for the hearing and final disposal of the suit or other proceeding within the period of such leave or intended leave as aforesaid, it shall record its reasons for its inability to do so, and shall cause a copy thereof to be furnished to such person on his application without any payment whatever by him in respect either of the application for such copy or of the copy itself. If in any case a question arises as to the proper military/air force authority qualified to grant such certificate as aforesaid, the Court shall refer the question at once through the authority granting the certificate to— (i) an Officer having power not less than a Brigade or equivalent Commander in the case of military personnel; (ii) an Officer having power not less than a Group Commander or equivalent Commander in respect of air force personnel. The decision of the Officer so referred to shall be final. (4) Persons subject to the Army and Air Force Acts who are entitled to the privileges mentioned above are detailed in sections 2 and 31 of those Acts. They are— (a) Officers, junior commissioned officers and warrant officers of the Regular Army and officers and warrant officers of the Air Force; (b) persons enrolled under the Army or the Air Force Acts; (c) persons belonging to the Indian Reserve Forces or Air Force Reserve when called out for, or engaged in, or returning from training or service; (d) persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test; (e) Officers of the Territorial Army when doing duty as such officers; (f) enrolled persons of the Territorial Army when called out or embodied or attached to any regular forces; (g) persons holding commissions in the Army in India Reserve of Officers and Officers appointed to the Regular Reserve of Officers when ordered on any duty or service for which they are liable as such members; (h) persons belonging to the Indian Air Force Volunteer Reserve in the circumstances specified in section 3 of the Indian Air Force Volunteer Reserve (Discipline) Act, 1939 (XXXVI of 1939); (i) persons not otherwise subject to military/air force law, who, on active service, in camp, on the march or at any frontier post specified by the Central Government are employed by, or are in the service of, or are followers of, or accompany any portion of the Regular Army/Air Force.