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Sher Behudoor Vs. Pasupathy Upadhyaya - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 727 of 1972
Judge
Reported inAIR1973Ker175; (1973)ILLJ516Ker
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1); Employees Provident Fund Act, 1952
AppellantSher Behudoor
RespondentPasupathy Upadhyaya
Appellant Advocate M.S. Kurien, Adv.
Respondent Advocate P.F. Thomas and; Joseph Franklin, Advs.
Cases ReferredKondayya Nayudu v. Marianan
Excerpt:
- - no doubt, counsel for the revision petitioner contends before me that the judgment-debtor is entitled to have exemption in respect of other compulsory deductions like payment to the co-operative society, repayment of instalments of loans taken from the provident fund etc......on this basis the learned counsel contends that contributions payable to employees provident fund and employees state insurance corporation, deducted by the employer at the time of payment of salary also have to be deducted from the remainder after deducting the amounts not attachable under clause (i) of sub-section (1) of section 60, civil p. c. it is contended that a sum of rs. 5/- is being paid regularly to the e. s. i. scheme and a sum of rs. 10/- is being paid to the provident fund and that, therefore, the remainder is only rs. 28/- per month. 4. though clause (k) refers to only the provident funds act of 1925, the purpose seems to be to grant exemption from attachment of the amounts required to be compulsorily deposited by the employees under the various welfare legislations.....
Judgment:
ORDER

K. Bhaskaran, J.

1. The judgment-debtor in a suit for recovery of certain amounts from the defendant is the revision petitioner. The suit was decreed ex parte as prayed for. In execution of the decree, attachment of the salary of the revision petitioner was ordered by the Court. A sum of Rs. 35/- per mensem used to be deducted from the salary of the revision petitioner by the employer and deposited in Court in partial discharge of the amount due under the decree from the revision petitioner. This revision arises out of an order allowing the respondent herein to withdraw the amount lying in deposit.

2. Sri M. S. Kurien, learned counsel appearing for the revision petitioner argues that this order is not sustainable, as it is passed in violation of the protective provisions contained in Section 60 of the Code of Civil Procedure. The contention of the learned counsel is that, in all, the revision petitioner gets only Rs. 286/- per mensem, and out of that a sum of Rs. 243/- is not attachable in terms of Clause (1) of Sub-section (1) of Section 60, Civil P. C.

3. It is also submitted that independently of the exemption granted under Clause (i) of Sub-section (1) of Section 60, the revision petitioner is entitled to claim exemption of certain other amounts out of Rs. 43/- left, in view of the provisions contained in Clause (k) of the same sub-section. Clause (k) of Sub-section (1) of Section 60 reads as follows:

'(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.' On this basis the learned counsel contends that contributions payable to Employees Provident Fund and Employees State Insurance Corporation, deducted by the employer at the time of payment of salary also have to be deducted from the remainder after deducting the amounts not attachable under Clause (i) of Sub-section (1) of Section 60, Civil P. C. It is contended that a sum of Rs. 5/- is being paid regularly to the E. S. I. Scheme and a sum of Rs. 10/- is being paid to the Provident Fund and that, therefore, the remainder is only RS. 28/- per month.

4. Though Clause (k) refers to only the Provident Funds Act of 1925, the purpose seems to be to grant exemption from attachment of the amounts required to be compulsorily deposited by the employees under the various welfare legislations intended to bring about social and economic security to the employees. In that view, though contribution to the Funds under the Employees State Insurance Scheme and Employees Provident Fund Act 1952 has not been specifically mentioned giving full effect to the intention of the legislature behind incorporating Clause (k). I hold that the revision petitioner is entitled to claim exemption with respect to such amounts also. The High Court of Rangoon in Rangoon Municipality v. Ram Behari. (AIR 1939 Rangoon 432) and the High Court of Madras in Kondayya Nayudu v. Marianan, (AIR 1940 Mad 766) have taken the view that contribution to the Provident Fund deducted by the employer is to be exempted from attachment. In this view, only a sum of Rs. 28/- is attachable from the salary of the judgment-debtor. No doubt, counsel for the revision petitioner contends before me that the judgment-debtor is entitled to have exemption in respect of other compulsory deductions like payment to the Co-operative Society, repayment of instalments of loans taken from the Provident Fund etc. I do not, however, find any basis for this argument, and I have no hesitation to hold that the wording in Clause (k) of Sub-section (1) of Section 60 does not warrant such an inference.

5. The learned counsel for the respondent submits that no such plea as has been put forward now had been raised by the judgment-debtor during the course of the proceedings which resulted in the order of attachment of the salary. However, being a question of law affectingthe very jurisdiction of the Courts to order attachment of salary. I have allowed the counsel appearing for the revision petitioner to raise this contention before me.

6. The revision petition is accordingly allowed and the Court below is directed to issue a cheque calculating the deduction at the rate of Rs. 28/- per month, instead of Rs. 35/- as has been done hitherto. I do not know whether, by this time, the entire amount has become payable, even calculating the payment to be at the rate of Rs. 28/- per month. The Court below may allow the respondent, either on the application on which the impugned order has been passed or by a fresh application, to withdraw the amount calculated at the rate of Rs. 28/- per mensem from the date of the order of attachment, and issue cheque for the withdrawal of such amount. If the amount in deposit is more than what is required to satisfy the decree such amount may be returned to the judgment-debtor. In the circumstances of the case, the parties are directed to bear their respective costs.


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