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The Madras and Southern Maharattah Railway by Its General Manager Vs. Chengali Sydalli and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 1835 of 1947
Judge
Reported inAIR1950Mad402
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 60 and 115 - Order 21, Rule 58; Provident Funds Act, 1925 - Sections 3
AppellantThe Madras and Southern Maharattah Railway by Its General Manager
RespondentChengali Sydalli and anr.
Appellant AdvocateV.K. Ramanathan, Adv. for King and Partridge
Respondent AdvocateE.L. Bhagiratha Rao and ;E. Venlcatesam, Advs.
DispositionPetition allowed
Cases ReferredIn Aidal Singh v. Khazan Singh
Excerpt:
.....- section 60 of code of civil procedure, 1908 and section 3 of provident funds act, 1925 - whether railway company can raise objection under section 60 to attachment of provident fund amount payable to one of its employees - railway company had not raised objection as representing judgment-debtor - objection was taken as garnishee - provident fund of judgment-debtor not liable to attachment considering section 60 and section 3 - railway company entitled to maintain objection to attachment of provident fund. - - ' 3. it is argued by the learned counsel for the petitioner that the trial court failed to exercise the jurisdiction vested in it by law on an erroneous view of the law and he also maintained that the decision relied on by the trial court is distinguishable on the facts of.....orderchandra reddi, j.1. this civil revision petition raises the question whether a railway company can raise an objection under section 60, civil p. c., to the attachment of the provident fund amount payable to one of its employees. respondent 1 who obtained a money decree against respondent 2 who was an employee in the madras and southern maharatta railway co, applied to the court of the district munsif of vizagapatam for a prohibitory order directing the petitioner to attach the amount due to the judgment-debtor from out of the provident fund that the judgment debtor was entitled to from the railway company on his retirement. the district munsif directed the attachment of rs. 503-5-4 and this order of attachment was made absolute on 22nd april 1946. the railway company, as garnishee.....
Judgment:
ORDER

Chandra Reddi, J.

1. This civil revision petition raises the question whether a railway company can raise an objection under Section 60, Civil P. C., to the attachment of the provident fund amount payable to one of its employees. Respondent 1 who obtained a money decree against respondent 2 who was an employee in the Madras and Southern Maharatta Railway Co, applied to the Court of the District Munsif of Vizagapatam for a prohibitory order directing the petitioner to attach the amount due to the judgment-debtor from out of the provident fund that the judgment debtor was entitled to from the railway company on his retirement. The District Munsif directed the attachment of Rs. 503-5-4 and this order of attachment was made absolute on 22nd April 1946. The railway company, as garnishee thereupon filed an application for raising the attachment under Section 60, Civil P. C., on the ground that according to the Provident Funds Act, the Provident Fund payable to the judgment-debtor was exempt from attachment, Though notice was served on the judgment-debtor he did not appear in Court and raise any objection to the attachment claiming exemption under Section 60, Civil P. C. The District Munsif dismissed the application filed by the railway company holding that the exemption can be claimed only by the judgment-debtor and if for some reason or other the judgment-debtor did not choose to take advantage of the privilege no one else was entitled to claim the benefit of the provisions under Section 60, Civil P. C. He also observed that if the judgment-debtor exercised his right under Section 60, Civil P. C., then the Court was bound to raise the attachment. In support of this view, he relied upon a decision of the Lahore High Court in Bhagu v. Batna Singh, A. I. R. 1933 Lah. 251: 145 I. C. 169. It is against this order of the District Munsif of Vizagapatam that the present civil revision petition is filed by the Madras and Southern Maharatta Railway Company.

2. It is necessary before I deal with the question raised and the authorities cited before me to refer to the proviso to Section 60, Civil P. C., which lays down that:

'Provided that the following particulars shall not be liable to such attachment or sale, namely ..... (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.'

Section 3, Provident Funds Act enacts :

'A compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointed under the Provincial Insolvency Act, 1920, shall be entitled to, or have any claim, on any such compulsory deposit.'

3. It is argued by the learned counsel for the petitioner that the trial Court failed to exercise the jurisdiction vested in it by law on an erroneous view of the law and he also maintained that the decision relied on by the trial Court is distinguishable on the facts of that case. In support of his contention that the railway company also could take objection to the attachment of the provident fund payable to the judgment-debtor he cited to me two cases one reported in Rajendra Kumar v. Central Government, A. I. R. 1944 Lah. 168 : 215 I. C. 110 and the other in Postmaster General, Bombay v. Chenmal Mayachand, I. L. R. (1941) Bom. 415 : A. I. R. 1941 Bom. 389. In Rajendra Kumar v. Central Government, A. I. R. 1944 Lah. 168: 215 I. C. 110 the salary due to an employee of the post office was attached and on an objection taken by the Government that the salary was not attachable having regard to the provisions of Section 60, Civil P. C. the attachment was raised. In dealing with the contention that the Government was not entitled to raise the objection regarding the attachment of the salary the learned Judges stated that 'the proceedings taken on behalf of the Government are more or less in the nature of proceedings by a garnishee and it was open to them to draw the attention of the Court to the provisions of Section 60, Civil P. C, which have been specifically referred to under Order 21, Rule 48, Civil P. C., and that they were entitled to object and to bring the illegality to the notice of the Court. The learned Judges laid down the principle that the provisions of Section 60, Civil P. C., operated as a bar to attachment of the salary, In spite of a judgment between the parties to the execution proceedings holding that the judgment-debtor's salary was liable to attachment.

4. This principle was enunciated by a Full Bench of the same High Court in Prem Prakash v. Mohanlal, A. I. R. 1943 Lah. 268: I. L. R. (1944) Lah. 379. It was stated in that judgment that Section 60(1) proviso (i) is mandatory and is based on consideration of public policy and it was not open to the judgment-debtor to waive the privilege granted to him under the provisions of Section 60, Civil P. C., in public interest and any agreement which has the effect of rendering the provisions of that section nugatory must be held to be not enforceable by law and therefore void. The observations of the learned Judges at p. 273 are apposite:

'But the question is whether this provision was included in the statute book with the object of conferring a privilege over him or whether he was deriving a benefit in consequence of something else which the Legislature intended to achieve. The obvious intention of the Legislature was, so far as I can see, that these public officers or servants (which form broadly speaking covers the servants of a railway company and local authority) should be permitted to continue to discharge their duties satisfactorily in public interest without being distressed by the idea that they would get nothing after working for the whole month and that they would not be consequently able to maintain themselves or those whom they were out of affection or in duty bound to support. It is not easy to see how a person oppressed with the idea that he would not be able to provide himself or his family with means of subsistence can discharge his duties properly and efficiently.........'

The Full Bench also held that the ruling in Bhaga v. Batna Singh, A. I. R. 1933 Lah. 251: 145 I. C. 169 (relied on by the trial Court in this case) and the other decisions relied on in support of the proposition that it is only the judgment-debtor that could claim exemption under Section 60, Civil P. C., were not correctly decided and should not be upheld.

5. In Postmaster General, Bombay v. Chenmal Mayachand, I. L. R. (1941) Bom. 415: A. I. R. 1941 Bom. 389 the facts are that the judgment-debtor who was a postman was arrested in execution of a money decree obtained against him. In order to escape from arrest he agreed for payment of Rs. 6/-, out of his salary of Rs. 40/-, until the decree debt was satisfied. The decree-holder then applied to execute the decree praying for attachment of the judgment-debtor's salary and the Court sent an order under Order 21, Rule 48 Civil P. C., to the Postmaster General asking him to remit Rs. 6/-, every month in satisfaction of the decree obtained against the postman, one of the employees, under the Postmaster General. The Postmaster General then filed an application objecting to the order of attachment. The question then arose whether the Postmaster General could maintain the application in view of the agreement entered into between the judgment debtor 'and the decree-holder. It was laid down by the Bench that the application by the Postmaster General was maintainable and it could even be preferred under the inherent jurisdiction of that Court as the attachment was illegal and opposed to public policy. They also held that an agreement between the judgment-debtor and decree-holder for attachment of a portion of the salary was illegal and could not be enforced. Dealing with the question whether it was open to the judgment-debtor to contract himself out of the benefit conferred on him by the provisions of Section 60 Civil P. C., the learned Judge Divatia J. observed as follows:

'The question then is whether it is open to a person to contract himself out of these provisions or to waive their benefit. It is no doubt a general rule that one may renounce a law introduced for his own benefit. But that rule applies only to the rights and benefits of a personal and private nature created under an agreement or granted by law. There is a clear distinction between a contractual or a statutory right created in favour of a person for his own benefit and a right which is created on the ground of pulic interest and policy. The rule of waiver cannot apply to a prohibition based on public policy In Graham v. Ingleby (1848) 1 Ex 651 Baron Alderson observes at p. 657.--The principle upon which the cases proceed is well founded and it is this that an individual cannot waive a matter in which the public have an interest. This principle has been recently applied by the Privy Council in Gaekwar Baroda State Railway v. H. Habib-Ul-Haq and by the Calcutta High Court in Jogeswar Mahata v. Jhapal Santal : AIR1924Cal638 . Our High Court has similarly applied it to the rights created is favour of agriculturists in Shankerlal v. Raghunathdas, 37 Bom. L. R. 778: A. I. R. 1935 Bom. 433.'

With this reasoning I express my respectful agreement. The decisions cited above make it abundantly clear that even in a case where a judgment-debtor agrees to attachment of his salary waiving the rights conferred on him under Section 60, Civil P. C., still the attachment is illegal and should be raised as such an agreement is opposed to public policy, void and unenforceable. That being the law laid down in these decisions it cannot be said that merely because a judgment-debtor did not appear and take advantage of the provisions of Section 60, Civil P. C., the attachment which is an illegal one can be levied on the properties, that is, the provident fund which is exempt under Section 60, Civil P. C., and Section 3, Provident Fund Act of 1925, In Aidal Singh v. Khazan Singh : AIR1930All727 it was held that an agriculturist property was one exempt under the provisions of Section 60, Civil P. C, and it would be the duty of the Court to withdraw the attachment, and that the provisions of Section 60, were imperative prohibiting the Court from levying execution over the properties mentioned in the proviso to that section.

6. It was contended by the learned advocate for the respondent that since an appeal is provided for under Section 47, Civil P. C., this civil revision petition is not competent. I do not think I can agree with this argument of the learned advocate. It cannot be maintained that this is a question arising between the parties to the suit in which the decree was passed or their representatives. The Railway company has not raised this objection as representing the judgment-debtor. The objection was taken by the petitioner herein as a garnishee and not as representing the judgment debtor in the suit. I therefore negative this contention and hold that the civil revision petition is competent.

7. The next objection raised on behalf of the respondent is that this civil revision petition is not competent as this does not involve any question touching jurisdiction. I cannot accede to this argument also. The trial Court on an erroneous view of the law refused to exercise the jurisdiction vested in it by law. Having observed that if the judgment-debtor bad exercised his right under Section 60, Civil P. C., the Court was bound to raise the attachment, it dismissed the application on the view of the law taken by it that the railway company could not maintain the application. It was this erroneous assumption based on an overruled case of the Lahore Court that was responsible for its refusal to exercise the jurisdiction vested in it by law.

8. For the reasons given by me I hold that the provident fund of the judgment-debtor is not liable to attachment having regard to the provisions of Section 60, Civil P. C., and Section 3, Provident Funds Act and that the railway company is entitled to maintain the objection to the attachment of the provident fund. I therefore hold that the order of the lower Court is wrong and ought to be set aside, but I make no order as to costs in the circumstances of this case.

9. It is brought to my notice that the sum of Rs. 503-5-4 which was attached and paid into the Court by the railway company was drawn out by the decree-holder in the case. The decree-holder is directed to deposit into Court the money drawn out by him.


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