1. This is a petition filed by one Srinivasan for revising and setting aside the order of the Subordinate Judge of Salem in E.P. No. 157 of 1955, in O.P.. No. 29 of 1955, holding that dearness allowance will be part of his salary, and that, therefore, though he was drawing only a basic pay of Rs. 95 as he was drawing a. dearness allowance of Rs. 77-11-0 in addition, the rule in the Civil Procedure Code prohibiting the attachment of salaries below Rs. 100 per month would not be of avail to him as he was really drawing an excess of Rs. 72-11-0 per month and in. that view directing attachment of Rs. 32-8-0 per month was lawful and justifiable. Mr. Venkatasubramaniam, learned Counsel for the petitioner, urged that the lower Court erred grievously in holding that "dearness allowance" which, is " only a temporary addition to pay ", to meet the increased cost of living, would constitute part of a man's salary. Mr. P. Narayanaswami, learned Counsel for the respondent-wife, urged vigorously that dearness allowance is "temporary salary" added on to the " permanent salary " and is in no way like travelling allowance or house allowance excluded from "salary". Mr. Venkatasubramaniam confessed that there was no ruling either way so far. So did the learned Counsel on the other side. The absence of a ruling need not necessarily support Mr. Venkatsubramaniam's argument that dearness allowance was never considered to be part of the salary. It may be that people were so sure that a contention that dearness allowance was not part of the salary would never meet with acceptance by Courts that the contention was never raised so far. The mere fact that dearness allowance is not " basic pay " means nothing, and gives no guidance for the solution of this question. For the last many years, ever since the introduction of dearness allowance, there has been a ceaseless agitation all over the country to convert the dearness allowance into basic pay and to make it a permanent thing, and, in some cases, a certain proportion of the dearness allowance has been converted into basic pay but the rest allowed to continue as dearness allowance, or temporary addition to salary so that the State may not be overburdened for all time with the entire charge of the dearness allowance. The character of the dearness allowance differs in no respect from the character of pay, except in its temporary nature, as an addition to pay which may be decreased or increased, according to circumstances, or abolished altogether. Mr. Venkatasubramaniam urged that dearness allowance is intended to meet increased cost of living. That may be so, but, then, pay also is intended to meet the cost of living. The very phrase ' living wage ' will show the basis of the basic pay itself. I am therefore clearly of opinion that " dearness allowance" will be part of a man's salary like acting allowance, when a man is discharging the duties of a higher office for the prescribed period under the rules and is entitled to it. Names may differ, but the character of the payment is the same. Dearness allowance fulfils the very same function as basic pay, and must therefore be deemed to be part of the "salary", unlike travelling allowance, housing allowance, etc., which are meant for particular purposes and are confined to particular occasions, and sometimes to particular areas.
2. It follows, therefore, that the lower Court's order was perfectly correct, it is hereby confirmed. This Civil Revision Petition is dismissed, but, seeing that it has been filed because there was no ruling on the subject before, I direct all the parties to bear their own costs. It was urged by the learned Counsel for the respondent that as she is a woman, and also the wife of the petitioner she should get her costs. I cannot agree. In modern times, especially after the enactment of the Constitution of India, discrimination on the ground of sex or relationship is not allowed.
3. This case having been set down for being mentioned this day (9th August, 1957), the Court delivered the following
4. This matter has come up today for "mention". It is pointed out to me by the learned Counsel for the petitioner that the Government have, under the powers vested in them under Section 60(1)(1) exempted all allowances granted to Government servants to provide relief against the increased cost of living, and that this will include " dearness allowance" paid to Government servants. This matter was not brought to my notice at the time the Civil Revision Petition was heard and decided, but it does not affect the order in the Civil Revision Petition passed already, for two reasons. Firstly, the petitioner is not a Government Servant and cannot come under Section 60, Civil Procedure Code. Secondly, this is a decree for maintenance. Under Section 60(1)(i) even Government servant judgment-debtors do not get the same protection regarding decrees for maintenance as in the case of other decrees. Hence there is nothing really, to be " mentioned" in this Civil Revision Petition. The question whether in the case of a non-maintenance decree, non-Government s6rvants like this petitioner, should not get the advantage conferred on Government servants under Section 60(1)(I) on the basis of the notification by the Government on grounds of justice, equity and good conscience, is left open for consideration in an appropriate case.