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Prem Nath Vs. Nand Lal Khare - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 970 of 1973
Judge
Reported inAIR1982All489
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1); Code of Civil Procedure (CPC) (Amendment) Act, 1976; Evidence Act, 1872 - Sections 115
AppellantPrem Nath
RespondentNand Lal Khare
Advocates:Gyan Prakash, Adv.
DispositionAppeal dismissed
Excerpt:
civil - attachment of salary as award - proviso (i) of section 60 (1) of code of civil procedure, 1908 - no estoppel or agreement against statute - judgment-debtor agreed not to take protection of proviso (i) of section 60 (1) for attachment of salary in execution of award - can take such protection - not estopped from doing so. - .....be neither any estoppel nor any agreement against the statute itself. under the circumstances the salary to the extent of the first rs. 200/-could not be attached. one thing may be made clear. the court below has mentioned that the basic pay was rs. 212/-. in execution and for the purpose of section 60 we are not concerned with the basic pay. we are concerned with the salary that will include allowances along with the basic pay. under the circumstances, the appeal has no force. it has to be dismissed.3. the decree-holder-appellant can proceed to attach the amount of salary in excess of rs. 200/- in accordance with section 60(1) of the civil p. c. the attachment in the instant case was made before the amendment of the civil p. c. by the amending act, 1976, therefore the attachment in.....
Judgment:

K.M. Dayal, J.

1. Heard Sri Gyan Prakash,for the appellant. No one has appeared forthe respondent. The appeal arises out of anexecution proceeding in respect of an awarddated 6-1-1970. Under the award the claimof the plaintiff was decreed and he wasallowed to realise the same by attachmentof pay of Sri Nand Lal Khare at the rateof Rs. 150/- per month to the extent ofRs. 200/-. It was further provided that theplaintiff may realise the decretal amountby attachment of provident fund in thelifetime or after his death. The trial Courtrejected the objections and proceeded withthe attachment of Rs. 150/- per month asper award. The lower appellate Court hasallowed the appeal and held that the amountto the extent of Rs. 200/- could not beattached in execution of the decree.

2. The argument of the learned counsel is that the award was binding on the party and had the effect of a compromise decree. Consequently if the party agreed not to take protection of any statute then he cannot be permitted to take the objection at the stage of the execution. I am not prepared to accept the same. There could be neither any estoppel nor any agreement against the statute itself. Under the circumstances the salary to the extent of the first Rs. 200/-could not be attached. One thing may be made clear. The Court below has mentioned that the basic pay was Rs. 212/-. In execution and for the purpose of Section 60 we are not concerned with the basic pay. We are concerned with the salary that will include allowances along with the basic pay. Under the circumstances, the appeal has no force. It has to be dismissed.

3. The decree-holder-appellant can proceed to attach the amount of salary in excess of Rs. 200/- in accordance with Section 60(1) of the Civil P. C. The attachment in the instant case was made before the amendment of the Civil P. C. by the Amending Act, 1976, therefore the attachment in excess of Rs. 200/- of pay can proceed. The amended provision of Section 60, C. P. C. will not be applicable in view of Clause (g) of Section 97 of theAmending Act. Under these circumstances, the appeal is dismissed. As no one has appeared for the other side, there will be no order as to costs.


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