Skip to content


Sheo Baran Singh Vs. Mohan Lal Driver - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1480 of 1964
Judge
Reported inAIR1968All147
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60; Civil Procedure (Amendment) Code, 1963
AppellantSheo Baran Singh
RespondentMohan Lal Driver
Advocates:Hari Swarup, Adv.
DispositionPetition dismissed
Excerpt:
civil - execution - section 60 of code of civil procedure,1908 - decree of attaching the salary passed before amendment in section 60 - held, valid. - .....singhobtained a money decree against the respondent mohan lal and got a portion of mohan lal's salary attached. (mohan lal's salary was rs. 176 per month and therefore only rs. 38 were attached). the decree was passed in march 1962 and the salary was attached on 20th march 1963. presumably in pursuance of the attachment order, the salary was attached as it accrued from month to month.2. on 4th september 1963, parliament passed the code of civil procedure amendment act (no. 36 of 1963) amending clause (1) of section 60 of the code and raising the exemption limit in case of salary from one hundred to two hundred rupees. the judgment-debtor immediately took advantage of the new limit and moved the court for the release of his salary upto rs. 200 from attachment. this objection was.....
Judgment:
ORDER

S.S. Dhavan, J.

1. This is a decree-holders application under Section 115 of the Code of Civil Procedure against an order of the Additional District Judge Agra confirming that of the execution court upholding the judgment-debtor's objection against the attachment of his salary. The applicant Sheo Baran Singhobtained a money decree against the respondent Mohan Lal and got a portion of Mohan Lal's salary attached. (Mohan Lal's salary was Rs. 176 per month and therefore only Rs. 38 were attached). The decree was passed in March 1962 and the salary was attached on 20th March 1963. Presumably in pursuance of the attachment order, the salary was attached as it accrued from month to month.

2. On 4th September 1963, Parliament passed the Code of Civil Procedure Amendment Act (No. 36 of 1963) amending Clause (1) of Section 60 of the Code and raising the exemption limit in case of salary from one hundred to two hundred rupees. The judgment-debtor immediately took advantage of the new limit and moved the Court for the release of his salary upto Rs. 200 from attachment. This objection was upheld by both the courts below, and the decree-holder has come here in Revision.

3. Mr. Hari Swarup, for the applicant argued that the Courts below had no jurisdiction to release the salary from attachment as the Amending Act was not retrospective and did not apply to decrees passed or attachments made before it came into effect. Counsel pointed out that the applicant's decree was passed in March 1962 and the respondent's salary attached on 20th March 1963, and the applicant had been attaching the respondent's salary for several months before the Amending Act was passed. He argued that the respondent's salary, though within the new limit of Rs. 200 was not fully protected by it because it was governed by the old limit of Rs. 100. Mr. Hari Swarup relied on a decision of the Bombay High Court in Manilal Bhai Chand v. Mohanlal Maganlal, AIR 1946 Bom 102 in which it was held that decrees passed prior to the previous Amending Act of 1937 raising the exemption limit from Rs. 40 to Rs. 100 were not affected by the amendment. This case was cited before the appellate Judge who preferred to follow the subsequent decision in K. Lakshmi Narasimhayya v. Prayag Dossjee Varu : AIR1950Mad114 . It was held by the Madras High Court that the law amending Clause (i) of Section 60 C.P.C. was procedural law and therefore retrospective in Us effect.

4. I am of the opinion that this Revision must be rejected but I prefer to give my own reasons. With respect to both the Bombay and the Madras High Courts I do not think that that part of Section 60 C.P.C. which exempts certain properties from attachment or sale is procedural law. The mere fact that it occurs in the Civil Procedure Code is not conclusive. The real test is, the nature and substance of the law I think Clauses (a) to (i) of Section 60 confer a substantive right inasmuch as they protect certain clauses of property from attachment if it is held that these clauses are procedural and therefore retrospective, it will lead to strange results. In the present case, the applicant decree-holder has got the respondent's salary for several months attached before the Amending Act came into force. If the amendment is procedural and retrospective the salary already attached by him becomes non-attachable and he is liable to refund it. This was not the object of the Amending Act.

5. There are two stages in a suit --(1) the passing of a decree and (2) its execution. The decree entitles the decree-holder to execute it by attaching the property of the judgment-debtor. But under the law certain properties are exempt from attachment and the decree-holder cannot touch them. What properties are exempt depends upon the law conferring exemption on the date of attachment. If after the passing of the decree but before attachment, the law confers exemption on any class of property, it cannot be attached. The date of the decree is irrelevant, it is the date of the attachment which matters.

6. in this case an order of attachment was made in March 1963 -- that is, before the Amending Act raised the exemption limit in the case of salaries from Rs. 100 to Rs. 200. But a person's salary can be attached only when it accrues. There can be no attachment of a non-existent property. Under the present procedure, it is not necessary to pass a fresh order of attachment of salary each month, but the attachment itself can take effect only when the salary accrues.

7. After the Amending Act of 1963 the respondent's salary, being below Rs. 200, became non-attachable. Therefore any salary accruing after the amendment could not be attached.

8. For these reasons I confirm the order of the court below and reject this application.


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