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Vasant Shamrao Khot Vs. Jagannath Ganesh Jambotkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1017 of 1953
Judge
Reported inAIR1955Bom450; (1955)57BOMLR416; ILR1955Bom589
ActsCode of Civil Procedure (CPC), 1908 - Sections 51 and 60
AppellantVasant Shamrao Khot
RespondentJagannath Ganesh Jambotkar
Appellant AdvocateK.G. Datar, Adv.
Respondent AdvocateS.R. Dalal, Adv.
Excerpt:
.....under section 60 of the civil procedure code, 1908, as and when it becomes due. the appointment of a receiver is in substance and in effect an order of attachment.; secretary of state for india v. bai somi (1933) i.l.r. 57 bom. 507 : s.c. 35 bom. l.r. 615 followed. - - datar rightly points mil that it is hard on the decree-holder that he cannot get his decree satisfied although his judgment-debtor is drawing a very fat salary. as the law stands it is only if the decree-holder can attach the salary at that point of time when it becomes payable and has not yet been paid that he can succeed effectively in getting hold of the attachable portion of the salary......section 60 of civil p. c. this notice was discharged by the small causes court judge, and the decree-holder has come in revision.2. now, under section 60 the salary to the extent of the first hundred rupees and one hall of the remainder is not subject to attachment and even with regard to the salary of an employee who is not a government servant or a servant of a railway company it is exempt from attachment until it is actually paid. now, in effect, what the decree-holder wanted was to attach the salary as and when it became due and payable. therefore by means of this equitable mode of execution the decree-holder wanted to deprive the judgment-debtor of the protection granted to him under section 60.mr. datar says that although it may not be open to him to attach the salary, there.....
Judgment:
ORDER

1. The applicant is a decree-bolder and he obtained the decree on 20-1-1941, for Rs. 1,600. The judgment-debtor is an employee in the Burma Shell Company and is drawing a salary between Rs. 400 and Rs. 500, and the judgment-debtor applied for the appointment of a Receiver of the salary of the debtor to the extent that it is permissible under Section 60 of Civil P. C. This notice was discharged by the Small Causes Court Judge, and the decree-holder has come in revision.

2. Now, under Section 60 the salary to the extent of the first hundred rupees and one hall of the remainder is not subject to attachment and even with regard to the salary of an employee who is not a Government servant or a servant of a railway company it is exempt from attachment until it is actually paid. Now, in effect, what the decree-holder wanted was to attach the salary as and when it became due and payable. Therefore by means of this equitable mode of execution the decree-holder wanted to deprive the judgment-debtor of the protection granted to him under Section 60.

Mr. Datar says that although it may not be open to him to attach the salary, there is no reason why this equitable relief which is not attachment should not be granted. Now, the appointment of a Receiver is one of the modes of execution recognised by Section 51, and it is difficult to take the view that when there is a legal bar against attaching a property belonging to the judgment-debtor, that legal bar can be got over by resorting to an equitable relief which is as much a mode of execution as! attachment itself.

Mr. Datar has relied on the decision of the Privy Council in -- 'Rajindra Narain Singh v. Sundara Bibi, (A), where the Privy Council seems to have taken the view that although a right to future maintenance would not be attached, a Receiver can be appointed in respect of this maintenance.

This decision was carefully considered by a Division Bench of this Court in -- 'Secretary of State v. Bai Somi', AIR 1933 Bom 350 and Sir John Beaumont has explained that decision and he has pointed out that the Courts in England have always refused to sanction any form of equitable execution over property not liable to attachment at all. He has also taken the view that the appointment of a Receiver is in substance and in effect an order of attachment. Therefore, in my opinion, the learned Judge below was right in the view that he took.

3. Mr. Datar rightly points mil that it is hard on the decree-holder that he cannot get his decree satisfied although his judgment-debtor is drawing a very fat salary. I must confess that I do not see any reason why special protection should be given to a private employee When such protection is refused to a Government servant or a railway servant, I can understand the policy of the Legislator in keeping a portion of a judgment-debtor's salary beyond the reach of his creditor. ,

But to the extent that the Legislature thinks that a part of the salary at least should be utilised in satisfying his decretal debts, the Legislature must provide a proper remedy to the decree-holder to get hold of that part of the salary.

As the law stands it is only if the decree-holder can attach the salary at that point of time when it becomes payable and has not yet been paid that he can succeed effectively in getting hold of the attachable portion of the salary. In a majority of cases it would be almost impossible for the decree-holder to attach the salary at that precise moment of time & therefore Mr. Datar rightly says that although the Legislature has made part of the salary attachable, yet in effect by not providing a proper remedy has practically made the whole of the salary unattachable. This is a matter for the Legislature to consider and I can only say that I agree with Mr. Datar that some amendment to the law is necessary.

4. The result is that the revision application fails. Rule discharged with costs.

5. Revision dismissed.


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