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Manilal Bhaichand Vs. Mohanlal Maganlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 382 of 1944
Judge
Reported inAIR1946Bom102; (1945)47BOMLR836
AppellantManilal Bhaichand
RespondentMohanlal Maganlal
Excerpt:
.....of act ix of 1937-effect of repeal.;clause (l) of the proviso to section 60(1) of the civil procedure code, 1908, refers to an allowance forming part of the emoluments of any public officer or of any servant of a railway company or local authority. hence, a dearness allowance received by a private employee from his employer is not exempt from attachment by reason of the government of india notification no. 1489-d/43, home department, dated april 29, 1943.;the amendment effected by act ix of 1937 in section 60 having been incorporated in the code itself there was no necessity of burdening the statute book with act ix of 1937, which was repealed by the repealing and amending act, 1942; but the repeal did not affect the existing rights and liabilities created by that act.;act..........the exemption of salaries from attachment in execution of a decree under section 60(1) of the civil procedure code. the appellant filed suit no. 1063 of 1936 against the respondent on october 5, 1936, and obtained a money decree on august 31, 1937. the respondent is a clerk in a mill, and the appellant filed darkhast no. 1 of 1943, on january 4, 1943, to execute his decree and recover' the decretal amount by attachment of the respondent's salary, which, according to the darkhast application, was rs. 105 per month. the respondent contended that his salary was only rs. 62, and not rs. 105, that it was not liable to attachment under section 60(1) of the civil procedure code, and that in any case all that could be attached was half of the excess of the salary over rs. 100. the executing.....
Judgment:

Lokur, J.

1. This second appeal raises an important question regarding the exemption of salaries from attachment in execution of a decree under Section 60(1) of the Civil Procedure Code. The appellant filed Suit No. 1063 of 1936 against the respondent on October 5, 1936, and obtained a money decree on August 31, 1937. The respondent is a clerk in a mill, and the appellant filed darkhast No. 1 of 1943, on January 4, 1943, to execute his decree and recover' the decretal amount by attachment of the respondent's salary, which, according to the darkhast application, was Rs. 105 per month. The respondent contended that his salary was only Rs. 62, and not Rs. 105, that it was not liable to attachment under Section 60(1) of the Civil Procedure Code, and that in any case all that could be attached was half of the excess of the salary over Rs. 100. The executing Court found that Rs. 105, which the respondent received from the Mill, consisted of Rs. 62 as his pay, and Rs. 43 or so as dearness allowance. It held that dearness allowance was not liable to attachment under the Government of India Notification No. 1489-D/43, Home Department, dated April 29, 1943, and that, in spite of the amendment of Section 60(1), proviso, Clause (h), of the Civil Procedure Code, by Act No. IX of 1937, under Section 3 of the latter Act the amendment was not applicable to the present case as the darkhast proceedings arose out of a suit instituted before June 1, 1937. The respondent was found to have worked at night in the months of February, March and April, and received an extra salary of Rs. 15 per month. The executing Court further held that under Section 60(1), proviso, Clause (i), of the Civil Procedure Code, before its amendment by Act No. IX of 1937, the first forty rupees out of the pay were exempt from attachment. Thus deducting Rs. 40 from the salary of Rs. 62, it ordered the attachment of the remaining Rs. 22 every month and Rs. 37 for those months during which he worked at night. The total amount thus attached came to Rs. 243 only, and a prohibitory order was accordingly issued to the mill company in respect of that amount. The learned District Judge, however, thought that by the amendment made in Section 60 of the Civil Procedure Code by Act No. V of 1943 the whole amount of the respondent's salary was exempt from attachment. He, therefore, dismissed the darkhast with costs.

2. Both the Courts below have committed serious errors in reading the Notification of the Government of India and the wording of the amending Acts. It is not disputed here that out of the salary of Rs. 105 received by the respondent his pay was only Rs. 62 and the remainder was paid to him by the mill company by way of dearness allowance. The Notification of the Government of India, which is quoted in the order of the executing Court, exempts from attachment dearness allowance under Clause (l) of the proviso to Sub-Section (1) of Section 60 of the Civil Procedure Code. That clause purports to exempt from attachment any allowance forming part of the emoluments of any public officer or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and it does not apply to any allowance received by private employees. The executing Court thought that the Government of India could issue a notification even in respect of the dearness allowance paid by mill companies to their employees. But Clause (1) of the proviso to Section 60(1) clearly refers to an allowance forming part of the emoluments of any public officer or of any servant of a railway company or local authority. It must, therefore, be held that dearness allowance received by a private employee from his employer is not exempt from attachment by reason of the said Notification of the Government of India.

3. The executing Court has fallen into another error of a similar kind in thinking that out of the pay of Rs. 62, only Rs. 22 can be attached. Prior to the amendment of 1937, Clause (i) of the proviso to Section 60(1) exempted from attachment the salary of a public officer or 'a servant of a railway company or local authority to the extent of forty rupees monthly where the salary exceeded forty rupees, and did not exceed eighty rupees monthly. The benefit of the clause was not available to a private employee. In fact before the amendment of 1937, no part of the pay of such an employee, who was not a labourer or a domestic servant, was exempt from attachment. The learned District Judge has committed an error in regarding the salary of the respondent as the wages of a labourer or domestic servant wholly exempt from attachment under Clause (h) of the proviso to Section 60(1) of the Civil Procedure Code. The evidence shows that the respondent is a clerk in one of the departments of the mill, and does no manual labour. According to the ruling in Kulkarni v. Ganpat Hiraji [1942] Bom. 287: 44 Bom. L.R. 246 a clerk like the judgment-debtor cannot be regarded as a labourer or a domestic servant. The view taken by the learned District Judge is obviously incorrect, and is not pressed in this Court.

4. Before Section 60(2) of the Civil Procedure Code was amended by Act No. IX of 1937, Clause (h) of the proviso exempted only the wages of labourers and domestic servants, and there was no provision to exempt the salary of any other person in private employment. By Section 2 of Act No. IX of 1937, in the proviso to Sub-section (1) of Section 60, the following clauses were substituted for Clauses (h) and (i), namely:

(h) the wages of labourers and domestic servants, whether payable in money or in kind ; and salary, to the extent of the first hundred rupees and one-half the remainder of such salary;

(i) the salary of any public officer or of any servant of a Railway company or local authority to the extent of the first hundred rupees and one-half the remainder of such salary.

5. Section 3 of Act IX of 1937 provided that the! amendment made by Section 2 was not to have effect in respect of any proceedings arising out of any suit instituted before the first day of June, 1937. Admittedly the present execution proceedings have arisen out of a suit filed before June 1, 1937, and, therefore, the judgment-debtor cannot claim exemption of any part of his salary from attachment under the amended Clause (h) of the proviso to Sub-section (1) of Section 60. But it is pointed out that Act IX of 1937 has been repealed by Act XXV of 1942, and, therefore, the decree-holder can no longer get the benefit of Section 3 of Act IX of 1937. Act XXV of 1942 is the Repealing and Amending Act, by which various previous amending Acts were either wholly or partially repealed. Section 6A of the General Clauses Act (X of 18917) provides that where any Central Act repeals any enactment by which the text of any Central Act was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. So too Section 4 of the Repealing and Amending Act, 1942, says that the repeal by that Act of any enactment shall not affect any Act or Regulation in which such enactment has been applied, incorporated or referred to, nor shall it affect any right, title, obligation or liability already acquired, secured or incurred, or any remedy or proceeding in respect thereof. The amendment in Section 60 of the Civil Procedure Code effected by Act IX of 1937 having been incorporated in the Code itself, there was no necessity of burdening the statute book with Act IX of 1937, and it was repealed by the Repealing and Amending Act, 1942; but the repeal did not affect the existing rights and liabilities created by that Act. That Act preserved for the holder of a decree passed in a suit filed before June 1, 1937, the right to attach the salary of the judgment-debtor in accordance with Section 60 as it stood before the amendment, and in spite' of the amendment he could attach the whole of the salary of a private employee. That right was not taken away by the repeal of Act IX of 1937. But it is urged that a further amendment was made in Clauses (h) and (i) of the proviso to Section 60(1) of the Civil {Procedure Code by Act V of 1943 which contains no provision corresponding to Section 3 of Act IX of 1937 exempting from its application any proceedings arising out of suits instituted before a certain day. We do not think that Act V of 1943 was intended to take away pre-existing rights that were preserved by Section 3 of Act IX of 1937, since the amendments made by it were only verbal. All that it did was to transfer the second part of Clause (h) to Clause (i) and make some other nominal changes. We, therefore, hold that in proceedings arising out of any suit instituted before June 1, 1937, the liability of a judgment-debtor's salary to attachment is governed by Section 60 of the Civil Procedure Code as it stood before it was amended by Act IX of 1937. Hence the whole of the respondent's salary, including the dearness allowance, is liable to attachment.

6. The learned District Judge further misread Act V of 1943 in thinking that it was by the amendment introduced by it that the whole of the amount of the wages of labourers and domestic servants was exempted from attachment. Such wages were already exempt under the old Clause (1) as it stood before the amendment of Section 60 by Act IX of 1937. Moreover, as already pointed out, the respondent is not a labourer or a domestic servant. It is singular that the plain meaning of the section was misunderstood by both the Courts below in more different ways than one.

7. We set aside the order of the lower appellate Court and remand the darkhast to the executing Court for being proceeded with according to law in the light of the finding recorded in this judgment. The respondent shall pay the costs of the appellant throughout.


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