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In Re: P.D. Curtis, an Insolvent - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad27; (1941)2MLJ845
AppellantIn Re: P.D. Curtis, an Insolvent
Excerpt:
- - i am not therefore satisfied that there should be any suspension of the order of allocation......for an order for the following reliefs:(i) for an order to revoke the order attaching the insolvent's salary,(ii) for the refund of the amounts of allocation recovered beyond a total period of two years, and(iii) for the suspension of the allocation ordered for a month pending disposal of the present application.2. the insolvent in this case was by an order made by this court in july, 1938 directed to pay an allocation of rs. 25 which was subsequently increased by an order dated 9th april, 1940 to rs. 125. on 22nd october, 1940 the allocation was reduced to rs. 100. these orders were duly communicated to the insolvent who has in all paid allocation for 34 months. the insolvent now applies for a revocation of the allocation order not by virtue of any provision contained in the.....
Judgment:

Krishnaswamy Aiyangar, J.

1. This is an application taken out by the insolvent for an order for the following reliefs:

(i) for an order to revoke the order attaching the insolvent's salary,

(ii) for the refund of the amounts of allocation recovered beyond a total period of two years, and

(iii) for the suspension of the allocation ordered for a month pending disposal of the present application.

2. The Insolvent in this case was by an order made by this Court in July, 1938 directed to pay an allocation of Rs. 25 which was subsequently increased by an order dated 9th April, 1940 to Rs. 125. On 22nd October, 1940 the allocation was reduced to Rs. 100. These orders were duly communicated to the insolvent who has in all paid allocation for 34 months. The insolvent now applies for a revocation of the allocation order not by virtue of any provision contained in the Presidency Towns Insolvency Act, but under the provisions of Section 60, Civil Procedure Code relating to attachments. The applicant's learned Counsel relies on Section 60 (1) (i) which fixes the limit for the portion of the salary of a public officer or a servant of a railway company or local authority, liable to be attached. There is a proviso to this clause which says that:

Where the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree.

3. It is on this clause that the applicant relies in support of his contention. It is not however suggested that Section 60, Civil Procedure Code applies in terms to the present case. But it is argued that Section 60, Civil Procedure Code and Section 60 of the Presidency Towns Insolvency Act must be read together; even doing so, I do not see how it helps. For Section 60 of the Presidency Towns Insolvency Act is not at ail concerned with attachments. Sub-section (2) under which the orders against the insolvent were made is concerned with the jurisdiction of the Court to make an order for the appropriation of an insolvent's salary and income to the extent to which it is liable to attachment in execution of a decree or of any portion thereof. When a Court makes an order under Section 60, it does neither in fact nor in form direct the attachment of the property of the insolvent; and I am unable to see how Section 60, Civil Procedure Code can be invoked for the purpose of enabling the applicant to get rid of a liability placed upon him by an order under Section 60 of the Presidency Towns Insolvency Act. There is no justification for either prayer No. 1 or prayer No. 2. Nor can I see any merit in prayer No. 3. The insolvent has had all his salary except the portion appropriated. I am not therefore satisfied that there should be any suspension of the order of allocation. The application is dismissed.

4. Leave refused.


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