S. Ganesan, J.
1. The decree holder is the appellant; and he is aggrieved that the Courts below have rejected his application for attachment of the provident fund amount of the respondent (an employee in Vasantha Mills, Coimbatore, who had retired from service) which was still in the hands of the mills on the date of the application.
2. The provident fund in this case is governed by the Employees' Provident Funds Act, 1952; and Section 10 thereof reads thus:
The amount standing to the credit of any member in the fund or of any exempted employee in a 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 Court in respect of any debt or liability incurred by the member or the exempted employee.
Learned Counsel for the appellant contends that the provisions of Section 10 will not afford any immunity to the respondent, as he had admittedly retired from service on the date of the application for attachment of the provident fund amount.
3. I have no doubt in my mind that the contention is not well founded. Admittedly the provident fund amount sought to be attached is a 'compulsory deposit' and it is plain that the amount will continue to be a deposit and will not be the property of the respondent-employee, so long as it has not been paid over to him.
4. In Union of India v. Hiba Devi : 1SCR765 , the Supreme Court has laid down that the provident fund amount not paid to the subscriber after the date of his retirement; is also 'compulsory deposit' and that it is exempt from attachment and sale under Section 60(1)(k), Civil Procedure Code. The decision was under the Provident Funds Act, 1952.
5. In Joseph Benjamin Bonjour v. Official Assignee : (1956)1MLJ166 , also a case under the Provident Funds Act, 1952, a Full Bench of this Court has laid down that the protection afforded by Section 3(1) of the Provident Funds Act, from attachment of the money in such deposit will not continue after the money in such compulsory deposit has been paid over to the subscriber or the depositor. The learned Judges have observed that money thus paid over could not longer be described as ' compulsory deposit' and, by implication, have affirmed the principle that so long as the money continued to be in deposit, it will not cease to have the character of a provident fund amount, and will not be the property of the judgment debtor (subscriber).
6. In Mettur Industries v. Velayudha Mudaliar (1961) 1 M.L.J. 321, a case which directly arose under the Employees' Provident Funds Act (XIX of 1952) Kunhamed Kutti, J:, has laid down, while dealing with the provisions of Section 10 of the Act thus:
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.
7. In Syed Abdul Azeez Khan v. Flower and Anr., Alagiriswami : (1967)ILLJ796Mad , J., while dealing with a case under the Indian Provident Funds Act, has laid down that under Section 3 of the Act, any amount standing to the credit of any subscriber or depositor is not 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 that the amount does not become the judgment-debtor's till it is paid over to him. The learned Judge has followed the decisions of the Supreme Court cited supra.
8. I respectfully agree with the decision cited above. Admittedly, the provident fund amount sought to be attached is a compulsory deposit; and the principle is well established that, so long as the amount continues to lie in deposit with the employer and has not been paid over to the employee, it continues to retain the character of a 'provident fund amount' and does not become the property of the judgment-debtor. Admittedly, till the amount becomes the property of the judgment-debtor, Section 60(1)(k) Civil Procedure Code, will lend immunity to the fund from attachment.
9. In the result, the appeal fails and is dismissed with costs.