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Kondayya Nayudu and anr. Vs. Marianan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad766; (1940)1MLJ936
AppellantKondayya Nayudu and anr.
RespondentMarianan
Excerpt:
- - the audit officer has deducted that amount as well as the ordinary provident fund deposit from the attachable income. and the provident fund cannot claim to be in any better position than any other creditor with regard to that sum......the petitioner is a creditor who applied to the court for an order of attachment of a part of the guard's salary and allowances. an order was passed; but the audit officer, south indian railway, sent to the lower court a report to the effect that the attachable amount of salary was rs. 21-12-0, from which had to be deducted provident fund, rs. 11-15-0, and provident fund advance, rs. 10-0-0, the total of which two was greater than the attachable salary. he therefore said that no amount was available for attachment.2. the learned advocate for the respondent argues that the allowances of the guard should not be taken into account. they are, he says, compensation for the expense of travelling and having to buy his meals and sleep away from his home. i do not however find any reason for the.....
Judgment:

Horwill, J.

1. The respondent is a guard on the South Indian Railway and the petitioner is a creditor who applied to the Court for an order of attachment of a part of the guard's salary and allowances. An order was passed; but the Audit Officer, South Indian Railway, sent to the lower Court a report to the effect that the attachable amount of salary was Rs. 21-12-0, from which had to be deducted provident fund, Rs. 11-15-0, and provident fund advance, Rs. 10-0-0, the total of which two was greater than the attachable salary. He therefore said that no amount was available for attachment.

2. The learned Advocate for the respondent argues that the allowances of the guard should not be taken into account. They are, he says, compensation for the expense of travelling and having to buy his meals and sleep away from his home. I do not however find any reason for the exemption of allowances, and they are ordinarily included in the salary. There is no exemption of allowances in any of the clauses of Section 60, Civil Procedure Code. Under Section 60(k) are exempted all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, applies, in so far as they are declared by the Civil Procedure Code not to be liable to attachment. It is suggested that allowances may be one of the 'other sums' mentioned in the sub-section. The Provident Funds Act I of 1925 makes no mention of allowances. Moreover, the Audit Officer, in making his calculation, makes no distinction between salary and allowances. We may therefore take it that for the purpose of this revision petition, the salary of the respondent is Rs. 143-8-0.

3. Two further questions arise. The respondent had taken an advance from the Provident Fund and that amount was being recovered from him at the rate of Rs. 10 a month. The Audit Officer has deducted that amount as well as the ordinary provident fund deposit from the attachable income. The question is whether he rightly did so. The only clause under which it is said that such a deduction can be made is Clause (k). Recoveries of advances made from the provident fund are certainly not deposits, although they may be compulsory deductions or recoveries. It is however contended that such a recovery is made under the other and vaguer part of Clause (k), 'other sums in or derived from any fund to which the Provident Funds Act, 1925 applies'. This Rs. 10 is not a sum in the Fund nor, in my opinion, can it be said to be a sum derived from the Fund. The guard had borrowed a sum of money from the provident fund which he was entitled to do under the rules and he thereby became a debtor to the Provident Fund. In paying this Rs. 10 a month he was only paying off a sum for which he was liable as a debtor; and the Provident Fund cannot claim to be in any better position than any other creditor with regard to that sum. I therefore do not find any basis either in Section 60 of the Civil Procedure Code or in logic or equity for the deduction of this Rs. 10 from the salary of the guard available for attachment.

4. The other question is with regard to the manner in which the calculation should be made. The learned advocate for the petitioner contends that from the salary and allowance of Rs. 143-8-0 should be deducted the provident fund contribution of Rs. 11-15-0 and that the remainder should be considered to be his salary. The attachable salary would then be half of Rs. 43-8-0 minus Rs. 11-15 0, (Rs. 31-9-0), which would be Rs. 15-12-6. Section 60(i) of the Civil Procedure Code exempts salary to the extent of Rs. 100 and half the remainder, while an independent Sub-section (k) exempts compulsory deposits in the Provident Fund. These two sub-sections are independent and therefore, on reading these two sub-sections together, it would seem that the Legislature intended to exempt not only the salary up to Rs. 100 and half the remainder, but also, independently of it, such amount as is compulsorily deducted from the provident fund. Moreover, Rs. 131-9-0 (obtained by deducting Rs. 11-15-0 from Rs. 143-8 0) is not the respondent's salary;. It is a sum representing the difference between the salary and the provident fund contribution. I have therefore no doubt that the Audit Officer of the South Indian Railway adopted the correct method of calculation, except that he wrongly deducted the monthly sum recovered on account of the advance.

5. It follows from the above that the petitioner is entitled to attach out of the respondent's salary a sum of Rs. 10-13-0. The revision petition is therefore allowed with half costs from the respondent, and E.P. No. 805 of 1939 on the file of the District Munsif, Erode. The District Munsif should dispose of the petition according to the above findings.


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