Kunhamed Kutti, J.
1. These two civil revision petitions raise a common point which I shall make clear by reference to the facts of the case.
2. Velayutha Mudaliar, the respondent 1 herein, filed a suit, O.S. No. 871 of 1957, on the file of the District Munsif's Court, Salem, for recovery of a certain amount due from Palani Goundan, the respondent 2 herein, and attached, before judgment, a sum of Rs. 515 in the hands of the revision petitioner, the Mettur Industries, Ltd., hereinafter called the garnishees. This Rs. 515 included a provident fund amount of Rs. 322. Notice of interim attachment was served on the garnishees on 21 December 1957. They did not object to the attachment and the attachment was confirmed on 31 January 1958. The suit was subsequently decreed. When the garnishees were called upon to deposit the attached amount into Court, they intimated the Court, by Ex. A.1 dated 4 July 1958, that provident fund amount being exempt from attachment, they were unable to deposit the amount. By its letter Ex. A. 2 dated 16 August 1958 the Court however directed the garnishees to deposit the amount whereupon they deposited the amount, it is said, under protest, and by I.A. No. 2637 of 1958 applied to the Court for issue of a cheque for Rs. 322. They averred that the said amount was a portion of the provident fund which they were entitled to withhold and that the decreeholder is entitled only td payment of the balance of the attached amount, namely, Rs. 193. While this application was pending, the decreeholder also applied by E.A. No. 2706 of 1958 for a cheque for the entire Rs. 515 impleading the garnishees also as a respondent. The learned District Munsif heard both the applications together and by a common order dated 23 February 1959 dismissed the garnishees' application and allowed the respondent 1's application. It is the correctness of this order that is challenged in these petitions.
3. The common point urged for the garnishees is that the order directing the issue of cheque to the respondent 1 so far as it relates to the provident fund amount is without jurisdiction as the order of attachment and the subsequent proceedings pursuant to it are void in law.
4. Section 60(k) of the Civil Procedure Code provides immunity from attachment of the provident fund amount. There is prohibition against attachment of provident fund amount standing to the credit of an employee in the Employees' Provident Funds Act, 1952 (Act 19 of 1952)--vide Section 10. This position is conceded for the respondent 1 decreeholder, so that the order of attachment of the provident fund amount was illegal.
5. It is however urged for the respondent 1 that the respondent 2 had resigned his job on 19 December 1957, that is, two days before the notice of attachment was served upon the garnishees, that the amount became payable to the respondent 2 on his resignation, that thereafter it ceased to be provident fund amount and therefore the prohibition contemplated under Section 60(k) of the Civil Procedure Code and Section 10 of the Employees' Provident Funds Act does not apply. This contention found favour with the learned District Munsif. He also repelled the argument based upon provision in the scheme framed by the garnishees by which the provident fund could be paid only after the expiry of six months from the date of the employee's discharge and held that this provision could be construed only as deferring payment of the amount and not as conferring any immunity from attachment.
6. It would appear that prior to the deposit of the amount in Court the garnishees paid the provident fund amount to the respondent 2. This conduct on the part of the garnishees was construed by the learned District Munsif as supporting the decree-holder's contention that the garnishees' attempt was only to defeat his claim. In the context of the point for consideration in these petitions, I do not think that the above conduct of the garnishees is very relevant.
7. The settled position is that, so long as the amount does not cease to have the character of provident fund either by payment of the same to the employee or by removing it from his credit in his provident fund ledger, the immunity against attachment continues. In the present case, under the provident fund scheme framed by the garnishees and subscribed by the respondent 2, the amount was payable to him only after the expiry of six months from the date of his resignation, namely, 19 December 1957. The attachment was effected during this period and it can hardly be contended that the attachment at a time when the amount still retained the character of the provident fund was valid. If the Initial attachment was illegal or in other words prohibited by law, the subsequent orders passed by the Court can also have no legal effect. Obviously, the decreeholder cannot take advantage of the illegal order confirming the attachment, so that it should follow that the order directing issue of cheque for the entire sum of Rs. 515 including the provident fund amount is unsustainable in law.
8. It is nevertheless pointed out, for the respondent 1, that the garnishees had no locus standi to apply for cheque under Rules 163 and 165 of the Civil Rules of Practice as these rules contemplate issue of cheques consequent upon orders of Court and that the garnishees have no such order in their favour. If the attachment as regards the provident fund amount was without jurisdiction and void, the garnishees who deposited the amount were entitled to take back that amount. They were deposited as directed by Court and under protest and were not volunteers. The only mode in which they could take back that amount is by applying to the Court for issue of a cheque for the amount. In the circumstances of this case, therefore, I am unable to find much force in this argument. I am satisfied that the order of attachment of the provident fund amount was illegal. The respondent 1 was not entitled to enforce or get any benefit under the said illegal attachment.
9. In the result, these civil revision petitions are allowed, the order dismissing E.A. No. 2637 of 1968 is set aside, and an order is passed in the said application directing issue of a cheque for Rs. 322 in favour of the garnishees. E.A. No. 2706 of 1953 being an application for the issue of a cheque for an amount larger than what could be legally claimed by the respondent 1, the order therein should be deemed to operate only to the extent of Rs. 193. It would be open to the garnishees to apply for restitution against the respondent 1 to the extent of Rs. 322, if the amount in deposit has already been withdrawn by him. In the circumstances of this case, I make no order as to costs in these civil revision petitions.