Skip to content


V.V. Subbarao Vs. Mohammad HussaIn Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 561 of 1963
Judge
Reported inAIR1964AP395
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60 - Order 21, Rule 46
AppellantV.V. Subbarao
RespondentMohammad HussaIn Khan
Appellant AdvocateT. Dhanurbhanudu, Adv.
Respondent AdvocateG.V.R. Mohan Rao, Adv.
DispositionPetition allowed
Excerpt:
.....the first explanation to the section clearly shows that the attachable portion of the salary of a private servant can be attached only after it has become payable. his submission is that the explanation and clause (i) of section 60, should be so read as to effect justice and remove the discriminatory treatment and make the intention of the legislature clearly realised. the plain intention of the legislature would otherwise entirely fail by reason of a slight inexactitude in the language of any provision. it is impossible to conceive that the common law procedure act, 1854, or this order xlv, rule 2, which follows it, and which was drawn after these decisions had been given intended to invent a new kind of debt, but on the contrary it is clear to my mind that the judges who drew this..........the attachment of the salary of the judgment-debtor who is admittedly not a public servant, but a private servant. the judgment-debtor took an objection in the court below that his salary cannot be attached under section 60(i) of the civil procedure code in advance. rejecting that contention the subordinate judge held that the attachment takes effect and will be operative only with reference to the actual date of payment as the deduction is only made on the date of payment. it is this view of the subordinate judge which is assailed before me.2. the contention of mr. dhanvrbhanudu, the learned counsel for the petitioner, is that in view of the language of section 60(i) read with the first explanation to that section anticipatory attachment in regard to salaries payable to private.....
Judgment:
ORDER

Gopal Rao Ekbote, J.

1. This revision petition is directed against an order of the Subordinate Judge, Guntur given on 23rd March, 1963. The respondent who is the decree-holder Sled an execution petition for the realisation of the decretal amount. He sought the attachment of the salary of the judgment-debtor who is admittedly not a public servant, but a private servant. The judgment-debtor took an objection in the Court below that his salary cannot be attached under Section 60(i) of the Civil Procedure Code in advance. Rejecting that contention the Subordinate Judge held that the attachment takes effect and will be operative only with reference to the actual date of payment as the deduction is only made on the date of payment. It is this view of the Subordinate Judge which is assailed before me.

2. The contention of Mr. Dhanvrbhanudu, the learned Counsel for the petitioner, is that in view of the language of Section 60(i) read with the first explanation to that section anticipatory attachment in regard to salaries payable to private servants cannot be issued. I find sufficient force in this contention. In order to appreciate the merits of this contention it is essential to look into Section 60(i) and the First Explanation. Section 60 first enumerates the property which is liable to be attached in sale in execution of a decree. Proviso to that section however mentions properties which cannot be attached or sold. In that category of properties exempted from attachment the provision (i) is in the following terms :

'salary to the extent of the first hundred rupees and one-half the remainder in execution of any decree other than a decree for maintenance;'

I am not concerned with the proviso to Sub-section (i), The First Explanation is in the following terms ;

'The particulars mentioned in Clauses (g), (h), (i) (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable and 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.'

3. It, is, I think, not out of place to consider the antecedents of the said provision of Section 60. Before the amendment of the Section by Act 9 of 1937 there was no provision for exempting from attachment the salary of persons in private employment and hence the salaries of these persons were not exempt from attachment to any extent. The above Act amended the section by introducing the provision in exempting from attachment the salaries of private employees also to a partial extent. This exemption was embodied in Clause (h). Clause (i) dealt with salaries of public servants and persons in service of railway company and local bodice. The provision of the salary in regard to which exemption was given in regard to persons in private service is the same as in the case of public servants.

By Act 5 of 194S the provision as to the exemption of salaries contained in Clause (h) was amended and Clause (i) was enlarged so as to include all salaries whether of public servants or persons in private employment. This did not however make any real change in the legal position. It would be clear from a reading of Clause (i) that the clause exempts to a partial extent the salaries of the persons from attachment. This clause also as amended by Act 66/56 now provides for the exemption of salary to the extent of the first one hundred rupees and one-hall the remainder in execution of the decree other than a decree for maintenance.

A new Clause (i) (a) has also been added by the same Act under which 1/3 of the salary is exempted in execution of a decree for maintenance. Clause (i) as it stands now applies to both the public servants and persons in private service. It will thus be clear that although Clause (i) refers both to the public servants railway servants and servants of local authorities as well as private employees, the first Explanation however makes the salaries attachable to the extent permitted by Section 60, either before or after they have become, due as far as the public servants railway servants and servants of local authorities are concerned.

The First Explanation to the section clearly shows that the attachable portion of the salary of a private servant can be attached only after it has become payable. As the law stands therefore the decree-holder can attach the salary at a point or time when it becomes payable and has not yet been paid it he wants to get hold of the attachable portion of the salary of a private servant. It must however be remembered that Section 60, merely declares what properties can be attached, also mentioning what properties are exempted from such attachment.

Order 21, Rule 48 makes a provision for the attachment of salaries or allowances of public officers or servants of railway company or local authority. There is no specific provision on the line of Rule 48 of Order 21 for the attachment of the salary of a private servant. In the light of the Explanation when the salary of a private servant can be attached only when it becomes payable, the only provision which can be said to apply is Rule 46 of Order 21. That rule provides for the attachment of a debt. It cannot be in doubt that the salary of a private servant after it becomes payable is a debt. It can therefore be attached under Order 21 Rule 40.

4. The argument of the learned Counsel for the respondent is that there is no warrant for making a discrimination in attaching the salary of a public officer and that of a private servant. His submission is that the Explanation and Clause (i) of Section 60, should be so read as to effect justice and remove the discriminatory treatment and make the intention of the Legislature clearly realised. It is true that ordinarily when the language of a particular statute is capable of two interpretations, that interpretation should be adopted by the Court which would make the Act workable. A statute is designed to be workable and the interpretation thereat by the Court should be to secure that object unless crucial omission or clear direction makes that end unattainable. The plain intention of the Legislature would otherwise entirely fail by reason of a slight inexactitude in the language of any provision.

It is not in doubt that we should construe the provision in order not to defeat its objects but with a view to carry its object into effect. This cardinal principle of construction will be called in aid only when the provision which the Court is called upon to interpret is susceptible of different meanings. If the language of the provision is however clear, it is not for this Court to probe into the intention of the Legislature in order to find out what persuaded the Legislature to meet out a different treatment in relation to a public officer and the private servant. If we read the First Explanation to Section 60, one is not left in doubt that the language of the First Explanation is clear and cannot be called as ambiguous or capable of two meanings. The only meaning which it conveys is that the salary of a private servant is exempted from attachment before it actually becomes due. In other words such a salary can be attached only after it has become due. When that is the meaning which is conveyed by the Explanation, it is not for this Court to differently interpret it simply because in its actual application in majority of cases it may not be possible for a decree-holder to attach the salary of a private servant and realise his decretal amount.

The salary of a private servant unless there is a contract to the contrary usually becomes due on the last day of the mouth although the salary may be paid to him on the First or any other day of the next month. The expression 'salary' has now been defined in Section 60, , C. P. C. The Second Explanation defines the salary to mean the total monthly emoluments excluding any allowance declared exempted from attachment under the provisions of Clause (i), derived by a person from his employment whether on duty or on leave. This definition makes it abundantly clear that the salary can mean the total monthly emoluments and not a fraction thereof. Any attachment therefore of a salary must be in relation to the total monthly emoluments which is called salary for the purposes of Clause (i). If that is so, then the attachment order will have to be so issued as to effect it only when the salary has become payable.

Any view that at least to the extent during the course of the month salary which has become due would be deemed to have been attached under an order of attachment of a salary would not now stand valid. Chagla, C. J., in Vasant v. Jagannath, : AIR1955Bom450 held :

'In a majority of cases it would be almost impossible for the decree-holder to attach the salary at that precise moment of time and 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 say that I agree with Mr. Datar that some amendment to the law is necessary.'

5. It is true that the salary after it becomes payable is a debt which can be attached under Order 21, Rule 48. It cannot however be premised merely on the ground that even though the debt has not become due or payable, it can be attached under Order 21, Rule 46 similarly the salary can be attached in advance. What is however ignored in advancing such an argument is that the salary becomes debt only when it becomes due. That is not the case in regard to a debt which may be payable in future. In that case there is existing debt; there is a liability to pay it, but the actual payment is postponed to a future date. That argument therefore renders no service to the respondent as there is no apology between the two types of cases except as mentioned above. The language of the explanation also cannot be ignored.

I am fortified in this conclusion by a decision in Webb v. Stenton, (1833) 11 Q B D 518, at pp. 524-525. Brett, M. R., observed during the course of his judgment :

'Now that is a debt known to the law and which the law has always recognised. The law has always recognised as a debt two kinds of debt, a debt payable at the time, and a debt payable in the future, and unless the legislature intended to invent a new kind of debt not known to the law, 'accruing debt' can only be what the Judges have so stated. It is impossible to conceive that the Common Law Procedure Act, 1854, or this Order XLV, Rule 2, which follows it, and which was drawn after these decisions had been given intended to invent a new kind of debt, but on the contrary it is clear to my mind that the judges who drew this Rule 2, and the Parliament which afterwards sanctioned it, intended to put the same meaning on the words 'debts owing or accruing' as was put on them by the judges in the well-known decisions upon Section 61 of the Common Law Procedure Act, 1854, Therefore it seems to me that the meaning of 'accruing debt' in order XLV, Rule 2, is debitum in presenti, solvendum in futuro, that it goes no further, and that it does not comprise any-thing which may be a debt however probable and however soon it may be a debt. That is the construction which I put upon this rule,'

The salary therefore cannot be attached in advance. There can be no anticipatory order of attachment for a salary which may became due in future. The First Explanation to Section 60, exempts the salary from attachment in such a way. I would now consider some o! the cases cited at the Bar.

6. In the case of (1883) 11 Q B D 518 cited above it was held that 'there was no debt' owing or accruing at the time when the order was applied for which could be attached under Order XLV, Rule 2. That case also indicates that the proper course of the judgment debtor to pursue is to apply for the appointment of a Receiver.

7. In Ayyavayyar v. Virasami Mudali, I L R 21 Mad 393 a Bench of the Madras High Court held that the wages of a private servant cannot be attached in whole or in part before they become due and a debt exists.

8. In Debi Prasad v. A. H. Lewis, I L R 31 All 304 Richards, J., who spoke for the Bench held on facts that where a decree-holder applied on the 18th November 1907 for the attachment of the judgment-debtor's salary for November and the succeeding months, the judgment-debtor being a lawyer's clerk, 'that the unearned salary of a private servant in whole or in part was not liable to attachment in advance.'

9. In Padmanand Singh v. Rama Prasad, 11 Ind Cas 422 (Call a Bench of the Calcutta High Court held that 'the term 'debt' in Rule 46 of Order XXI of the Civil Procedure Code, is intended to be used in its legal sense of a debt either due or accruing due. A prohibitory order cannot validly be issued in respect of sums which may never fall due and may never become payable to the judgment, debtor. Therefore a fixed sum payable to a judgment-debtor monthly only for life not yet due, is not garnishable under the law'.

10. In Tulaji Fatesing v. Balabhai, I L R 22 Bom 39 at p. 41 a Bench of the Bombay High Court held .

''Section 272 of the Code of Civil Procedure provides for the attachment of property which is deposited in or is in the custody of a Court or public officer. The term (No. 142, Schedule 4) recites an application for the 'attachment' of certain money now in your hands (here state how the money is supposed to be in the hands of the person addressed. Thus it is clear both from the words of the section and the form that the property sought to be attached must be actually in the possession of the Court or officer to enable it to be attached under Section 272. It cannot be attached in anticipation of receipt.'

11. Balakrishnaiya, J., held in Ramgopal v. Misrilal & Sons, AIR 1953 Mys 127 :

'Unlike the case of the Government servants, the salary of the servants in a private firm can only be attached as a debt under Order 21, Rule 46 when it becomes actually payable. Order 21, Rule 48 does not apply to attachment of salaries of private servants. Hence an Order under Order 21, Rule 48 attaching the salary of a private servant in advance cannot be sustained.'

His Lordship relied on the case of Nagoba v. A. V. Zinjarde, AIR 1929 Nag 338. With due respect, to me it now appears that the reference given is not correct. What the learned Judge probably referred to was the case of B. P. Byramji & Co. v. Khemkaran, A I R 1929 Nag 333, which decides that Order 21, Rule 48 has no application in the case of persons who are in private service.

12. From a careful examination of the provisions of the Civil Procedure Code and the decisions referred to above, I have no hesitation in reaching the conclusion that the salary of a private employed cannot be attached in advance or in anticipation of its becoming due. The order of the Court below therefore is clearly erroneous.

13. It was contended by the learned Counsel for the respondent that such a course would lead to hardship and the decree-holder would be deprived of his legitimate amount although the judgment-debtor is getting a fat salary from the private employer. I do not think that the decree-holder is without any remedy even in such a case. Some reference during the course of the argument was made to the appointment of a Receiver.

Section 51, C. P. C. refers to the powers of Court to enforce execution. On the application of the decree-holder the Court subject to such conditions and limitations as are prescribed can direct the execution of decree by appointing a Receiver also. I am not however called upon to decide the question whether appointment of a Receiver can be so made under Section 51 for the realisation of the salary which is free from attachment. It is open to the decree-holder to move the Court if he desires to do so. I should not be taken however to have decided anything in that regard.

14. In the result this revision petition is allowed and the order of the Court below set aside. In the circumstances of the case however there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //