1. The respondent obtained a money decree against the appellant under which a sum of about Rs. 16,000 is said to be still due. The respondent applied for arrest of the appellant in execution of his decree. The appellant pleaded that by virtue of the provisions of Section 51, Civil P.C., as amended in 1936 he could not be arrested. Clause (b) of the proviso to Section 51 and the explanation are relied upon. Clause (b) of the proviso so far as it is necessary for this case runs thus:
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied....that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.
The explanation runs thus:
In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
The appellant is a pensioner getting Rs. 129 per mensem. The decree was passed in October 1937 in C. S. NO. 137 of 1935 on the file of the Original Side of the High Court, Madras. The execution petition which now comes before me was filed in 1941. The case of the appellant is that the amount which he receives month by month is exempt from attachment under Section 11, Pensions Act, and that therefore under Clause (b) of the proviso read with the explanation set out above, the appellant is to be considered to have no means of paying the amount of the decree or a substantial portion thereof. In reply the decree-holder pointed out that even if the defendant had paid a sum of Rs. 25 or thereabouts from the date of the decree, more than Rs. 1000 would have been paid by the date of the execution petition and that that sum would be a substantial portion of the decree within Clause (b) of the proviso to Section 51. Both the lower Courts came to the conclusion that the appellant cannot be said to have no means to pay the amount of the decree or a substantial portion of it.
2. In second appeal the appellant's learned advocate urges that under Section 11, Pensions Act, the amount paid to his client is really exempt from attachment. A similar question arose for decision before Ramesam and Cornish JJ. in Ranganayaki Ammal v. Official Assignee, Madras A.I.R. 1931 Mad. 797. The question there was whether under Section 3, Provident Funds Act, 19 of 1925, a compulsory deposit paid over to the subscriber was, after it was paid over to him, beyond the reach of the Official Assignee. The subscriber had become an insolvent and his property had been vested in the Official Assignee. The insolvent received a large sum by way of Provident Fund and paid it over to his wife. The question was whether the Official Assignee of Madras was entitled to recover that sum. Reliance was placed on Section 3, Provident Funds Act, and it was argued that under that section the Official Assignee could not recover that amount. Section 3, Provident Funds Act, runs thus:
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.
Section 11, Pensions Act, with which we are directly concerned is similar in terms and it runs thus:
No pension granted or continued by Government ... shall be liable to seizure, attachment or sequestration by process of any Court in British India at the instance of a creditor, for any demand against the pensioner or in satisfaction of a decree or order of any such Court.
The decision of the Bench above referred to is that after the amount was paid over to the depositor or the subscriber, it ceased to have the character of a provident fund or of a compulsory deposit and that therefore the Official Assignee was entitled to recover the amount from the person to whom it was paid over. The learned Judges pointed out that so long as the amount was still with the railway company as was the case in that case, the fund was not attachable and that the moment the fund was paid over to the subscriber after maturity, it ceased to retain the character of a compulsory deposit within the meaning of Section 3 of the Act. On page 356 they said this:
In this decision (referring to the decision in Gauri Shankar v. De Cruz it was observed that a compulsory deposit is only a deposit so long as it remains in the Fund and not after it has been paid over to the person to whose credit it has hitherto stood. We agree with these observations and dissent from the decision in Nagindas Bhukandas v. Ghelabhai Gulabdas A.I.R. 1920 Bom. 58. That being so, we must agree with our learned brother that the payment of Rs. 3000 which under the circumstances of the case amounted to a voluntary transfer cannot prevail against the Official Assignee and the Official Assignee is entitled to the order against the wife that she would pay down the amount of Rs. 3000...
The decision applies to this case and I can see no ground on which it can be distinguished. It was next argued by the learned advocate for the appellant that the Court in this case had not to deal with the question whether the amount of the pension after it has been received by the appellant could be actually seized by way of attachment or not, because that is not the relief which the decree-holder sought in the lower Court and that the only question is whether under Clause (b) to the proviso to Section 51 and the explanation, the amount which is payable month by month ought not to be left out of account in considering the question whether the judgment-debtor has the means to pay the amount of the decree or a substantial portion of it. The answer to this argument is really that which has been given to his first argument. If after the amount of the pension has been paid over to the appellant, the amount ceases to be exempt from attachment, I fail to see how it can be left out of account for the purposes of Section 51 proviso, Clause (b) and the explanation. I consider therefore that the lower Courts were right in holding that the appellant is not a person who has no means of paying the decree amount or a sufficient portion thereof. Whether the whole of the amount which the appellant receives month by month or what portion of it ought to be made available to the decree-holder are questions which should be decided by the executing Court and that question does not arise before me. The result is that the second appeal is dismissed with costs. No leave.