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Suryanarayana Rao and ors. Vs. Padi Thoyajakshamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Judge
Reported inAIR1977AP359
ActsCode of Civil Procedure (CPC), 1908 - Sections 60 - Order 21, Rule 48
AppellantSuryanarayana Rao and ors.
RespondentPadi Thoyajakshamma and anr.
Appellant AdvocateC. Poornaiah, Adv.
Respondent AdvocateK. Jwala Narasimham, Adv. for ;M. Jaggannadharao and M. Krishnamohana Rao, Advs.
Excerpt:
civil - attachment of salary - section 60 and order 21 rule 48 of code of civil procedure, 1908 - whether 'running allowance' paid to judgment-debtor who were non-gazetted employees of railways was salary and therefore liable to be attached in execution of decree - under section 60 (1) of code any allowance forming part of emoluments of any servant of railway company could be notified as exempted from attachment - no such notification was made in respect of 'running allowance' - under rule 912 of railway establishment manual 'running allowance' are treated as pay for purposes mentioned therein - held, in absence of notification 'running allowance' is subjected to attachment under provisions of section 60 of code. - .....the decree-holder (respondent) filed the execution petition under order. 21, rule. 48 of the civil procedure code for attachment of the salary of the judgment-debtors who are non-gazetted railway employees. the question that arose for consideration in the courts below and that arises for consideration now is whether what is called 'running allowance' paid to the judgment-debtors who are non-gazetted employees of the railway and which is paid on the basis of mileage for their travel in the moving train is salary and therefore liable to be attached under the relevant provisions of section 60 read with order. 21, rule. 48, civil procedure code. the two courts below have held that the allowance which is paid by way of 'running allowance' comes within the meaning of clause (i) section.....
Judgment:

1. The judgment-debtors Nos. 1 and 3 are the appellants. This Civil Miscellaneous Second Appeal arises out of the order in E. P. No. 142/1974 in O. S. No. 1093-1972, District Munsif's Court, Rajahmundry. The decree-holder (respondent) filed the execution petition under Order. 21, Rule. 48 of the Civil Procedure Code for attachment of the salary of the judgment-debtors who are non-gazetted railway employees. The question that arose for consideration in the Courts below and that arises for consideration now is whether what is called 'running allowance' paid to the judgment-debtors who are non-gazetted employees of the Railway and which is paid on the basis of mileage for their travel in the moving train is salary and therefore liable to be attached under the relevant provisions of Section 60 read with Order. 21, Rule. 48, Civil Procedure Code. The two Courts below have held that the allowance which is paid by way of 'running allowance' comes within the meaning of Clause (i) Section 60(1). Explanation II of the Civil Procedure Code. The contention of the judgment-debtors was thus negatived and it was held that the running allowance' was liable to be attached.

2. Under Clause (1) of Section 60 Civil Procedure Code salary is one of the item which can be attached in execution of a decree. Clause (i) under the proviso to Clause (1) of Section 60 of the Civil Procedure Code states that salary to the extent of the first Rs. 200 and one half of the remainder in execution of any decree other than a decree for maintenance is not liable to be attached. Under Clause (1), any allowance forming part of the emoluments of any servant of a Railway Company may by notification in the Gazette be declared as exempt from attachment. Explanation II attached to Clause (1) of Section 60 of the Civil Procedure Code states:

'In Clause (h) and Clause (i) 'salary' means the total monthly emoluments, excluding any allowanced declared exempt from attachment under the provisions of Clause (1) derived by a person from his employment whether on duty or on leave.'

3. The question, therefore, is whether this 'running allowance' is declared exempt from attachment by reason of any notification in the Gazette by the Railway administration. It is not stated before me that there is any notification exempting 'running allowance'. 'But Sri Poornaiah, appearing for the appellants contends that this 'running allowance' must be put on par with 'travelling allowance' and 'this travelling allowance' being exempt from attachment, 'the running allowance' in the instant case would also be exempt from attachment.'

4. I do not think the contention of the learned counsel for the appellants can be accepted. Rule. 902 of the Indian Railways Establishment Manual in Chapter IX defines 'mileage' as meaning the allowance granted to running staff, calculated at the rates and computed in the manner specified in the rules. It also defines 'running allowance' as meaning the allowances ordinarily granted to non-gazetted railway servants for the performance of duty directly connected with the charges of moving trains and includes mileage allowances or allowance in lieu of mileage. According to Rule. 912 under Chapter IX, of the Indian Railway Establishment Manual, 'Running allowances' are treated as pay for the purposes mentioned therein. Admittedly there is no provision either in the Establishment Manual nor there is any notification issued in the Gazette exempting 'Running allowances' from attachment. To accept the 'running allowance' should be treated as tantamount to 'Travelling allowance' having regard to the scope and scheme of the Railway Establishment Manual and the Code there must be a notification in the Gazette as contemplated by Clause (i) of Section 60(10), Civil Procedure Code, in the absence of such a notification, the running allowance is subjected to attachment under the relevant provisions of Section 60, Civil Procedure Code.

5. For the above reasons, I agree with the judgment of the Courts below and dismiss the Civil Miscellaneous Second Appeal with costs.

6. Appeal dismissed.


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