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Kousalya Devi Vs. Praveen Bankers - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1749 of 1979-E
Judge
Reported inAIR1980Ker148
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1); Central Government Compilation of Treasury Rules - Rule 225
AppellantKousalya Devi
RespondentPraveen Bankers
Appellant Advocate M.V. Ibrahimkutty and; M.I. Shanavas, Advs.
Respondent Advocate K.P. Dandapani and; Sumathi Dandapani, Advs.
DispositionRevision partly allowed
Cases ReferredIn Sher Behudoor v. Pasupathy Upadhyaya
Excerpt:
civil - realization of loan - section 60 (1) of code of civil procedure, 1908 and rule 225 of central compilation of treasury rules - direction to attach rs. 200 from petitioner's salary towards her creditor challenged - salary of petitioner to be commuted excluding allowances - petitioner's contribution to provident fund cannot be exluded from reckoning attachable salary - authorities directed to attach rs. 100 from petitioner's salary. - .....it is further submitted that out of her emoluments the petitioner pays rs. 60/-per month towards provident fund subscription and that also has to be excluded in reckoning the portion of the salary that can be attached. the question is whether this is right.3. the proviso to section 60(1) c. p. c. contains the particulars of the items which are not attachable and to our purpose clauses (i), (ia), (k), (1) and explanation ii alone need be looked into. they read as follows :--'60. property liable to attachment and sale in execution of decree. -- (1) ...... provided that the following particulars shall not be liable to such attachment or sale, namely :-- (a) and (b) xxxxx (i) salary to the extent of the first four hundred rupees and two thirds of the remainder in execution of any decree.....
Judgment:
ORDER

G. Viswanatha Iyer, J.

1. The defendant-judgment-debtor in a decree for money is the revision petitioner. She is employed as a Programme Announcer in the All India Radio, Kozhikode, an establishment of the Central Government. The decree-holder applied to attach her salary to realise the amount. She gets a total emolument of Rs. 1046.50 as shown here-under :--

Pay

Rs. 700.00

Dearness Allowance

Rs. 294.00

House Rent Allowance

Rs. 52.50

Total

Rs. 1046.50

The lower court has ordered to attach Rs. 200/- per month from her salary. This is challenged in this revision petition.

2. According to the petitioner's counsel the amount received by the petitioner by way of Dearness Allowance and House Rent Allowance are not attachable. It is further submitted that out of her emoluments the petitioner pays Rs. 60/-per month towards Provident Fund subscription and that also has to be excluded in reckoning the portion of the salary that can be attached. The question is whether this is right.

3. The proviso to Section 60(1) C. P. C. contains the particulars of the items which are not attachable and to our purpose Clauses (i), (ia), (k), (1) and Explanation II alone need be looked into. They read as follows :--

'60. Property liable to attachment and sale in execution of decree. -- (1) ......

Provided that the following particulars shall not be liable to such attachment or sale, namely :--

(a) and (b) xxxxx

(i) salary to the extent of the first four hundred rupees and two thirds of the remainder in execution of any decree other than a decree for maintenance;

XX XX XX

(ia) one third of the salary in execution of any decree for maintenance;

(J) XX X X XX

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment.

(l) Any allowance forming part of the emoluments of any servant of Government or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare tobe exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension (m) xx xx xx

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

It will be seen from these provisions that 'salary' takes in all emoluments excluding any allowance declared exempt from attachment under the provisions of Clause (1). Clause (1) is a special provision relating to a servant of a Government or a servant of a Railway Company or local authority. With respect to them only if the appropriate Government has by notification in the Official Gazette declared any allowance as exempt from attachment such allowance can be excluded. The petitioner's counsel submitted that in respect of the Central Government servants there is a notification by that Government exempting House Rent Allowance and allowance granted to provide relief against the increased cost of living from attachment. That notification is an old one and is published in the Gazette of India dated 25th Mar. 1949 being Notification No. 47/4/49-Estss. This notification was slightly amended by another one dated 31st May 1949. That is not material for our purpose. The notification is reproduced as Note 2 to R. 225 of the Central Government Compilation of the Treasury Rules, Vol. I. That is reproduced here for convenience :

'Note 2. -- The following declarations have been issued by the Central Government under Clause (1) of the proviso to Sub-section (1) of Section 60 Civil P. C. :--

(1) The allowances payable to officers in India subject to the (British) Army and Air Force Acts shall be exempt from attachment by order of a Court in satisfaction of a liability incurred after the 31st Dec. 1938.

(2) The following allowances payable to any public officer in the service of the Government, or any servant of a Federal Railway or of a Cantonment Authority or of the Port Authority of a major port, shall be exempt from attachment by order of a Court :--

(i) All kinds of travelling allowances.

(ii) All kinds of conveyance allowances.

(iii) All allowances granted for meet-ins the cost of (a) uniforms, and (b) rations.

(iv) Allowances granted as compensation for higher cost of living in localities considered by the Government to be expensive localities, including hill stations.

(v) All house-rent allowances.

(vi) All allowances granted to provide relief against the increased cost of living.'

It cannot be disputed that the Dearness Allowance is granted to provide relief against increased cost of living. Hence as per this notification issued under Section 60(1)(l) C. P. C. Dearness and House-Rent Allowance granted to the Central Government servants have to be excluded in reckoning the attachable portions of the salary. I am supported in this conclusion by the decision of the Delhi High Court in Laxmi Narain v. Man Singh (AIR 1973 Delhi 341. The respondent's counsel referred to the decision by Panchapakesa Ayyar, J. in Srinivasan v. Padmasini Ammal (AIR 1957 Mad 6221 stating that Dearness Allowance is also part of the pay for reckoning the portion of the salary which can be attached. The report does not indicate whether the petitioner therein was a Central Government servant. Further it is not seen that the above notification has been brought to the notice of that court fn considering the question whether Dearness Allowance can be included in the salary for attachment purposes. Hence the principle stated in that decision cannot apply to the facts of this 'ase. It follows that out of the total emoluments received by the petitioner pay of Rs. 700/- alone can be treated as salary and excluding the portion declared therein as not attachable only Rs. 100/-can be attached every month from the petitioner's salary,

4. Another contention raised is that the amount of Rs. 60/- per month contributed towards Provident Fund should also be deducted from the salary in reckoning the amount attachable from the salary. First of all Explanation II toSection 60(1) defines what a salary is for the purpose of Clauses (i) and (ia). That explanation does not provide for excluding any other amount from the salary. Secondly Clause (k) referred to above exempts only compulsory deposits in any fund to which the Provident Funds Act, 1025 or any other corresponding law applies. An agreement by the petitioner to contribute a specified sum or a request by her to deduct any specified sum from her salary towards Provident Fund will not by itself make that sum a compulsory deposit in any fund to which the Provident Fund Act applies. Only after the contribution goes into the Fund exemption under Clause (k) is available. My attention is drawn to the decision In Sher Behudoor v. Pasupathy Upadhyaya (1972 Ker LT 974 : (AIR 1973 Ker 175)) where Bhaskaran, J. has stated that contribution of funds under the Employees' State Insurance Scheme and Employees' Provident Funds Act 1952 have to be deducted in reckoning the attachable portion of the salary of a judgment-debtor. The learned Judge has held so on stating that though Clause (k) referred to above does not specifically provide for such a deduction, taking in view the Social Welfare Legislation this has been deducted. This approach is besides the point when we consider the specific provisions in the C.P.C which alone are relevant in considering the question of attachment of salary of Central Government Servants as in this case. It follows that the contribution which the petitioner has agreed to make towards Provident Fund cannot be excluded in reckoning the attachable portion of the salary.

In the result the Civil Revision Petition is partly allowed, the order of the Tower court Is modified by directing that only Rs. 100/- per month' can be attached from the salary of the petitioner. The lower court will issue necessary directions to this effect to the officer who disburses the salary to the petitioner. There will be no order as to costs.


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