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Kashi Prosad Agarwalla Vs. A.A. D'Cruz (25.03.1957 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 119 of 1955
Judge
Reported inAIR1958Cal19,61CWN740
ActsCode of Civil Procedure (CPC) , 1908 - Section 60
AppellantKashi Prosad Agarwalla
RespondentA.A. D'Cruz
Appellant AdvocatePrafulla Kumar Chatterjee (Sr.), Adv.
Respondent AdvocateRanajit Ghose, Adv.
DispositionAppeal dismissed
Cases ReferredUnion of India v. Hira Debi
Excerpt:
- .....60 of the code of civil procedure and the decree which is sought to be executed being the same decree in execution of which the salary in question was already under attachment for 24 months the said salary has become finally exempted from attachment in execution of that decree. the result, therefore, is that the salary of the judgment-debtor cannot now be attached in execution of the decree in question. 3. the decree-holder, however, tried to execute the decree through the alipore court by way of equitable execution by appointment of a receiver over the said salary. to that an objection was put in under section 47 of the code of civil procedure by the judgment-debtor. that objection came up for hearing before the learned subordinate judge, third court, alipore, and by his order dated.....
Judgment:

S.R. Das Gupta, J.

1. This appeal raises a point of some importance. It arises in this way.

2. The appellant before us obtained a decree in the Original Side of this Court for RS. 14,290-5-4. In execution of that decree the appellant attached through the Court of the Subordinate Judge, Gazipore, the salary of the respondent and during the twenty-four months the salary remained attached the appellant realised a total sum of Rs. 4964/- leaving a balance of Rs. 9326-5-4 still due and payable to the appellant. Under Clause (i) of the Proviso to Sub-section (1) of Section 60 of the Code of Civil Procedure the salary of any public officer or any servant of the railway company or local authority can be attached to the extent of the first 100 rupees and one half of the remainder of such salary. There is a proviso to the said clause which lays down that wherethe 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 24 months, such portion shall be exempted from attachment until the expiry of further period of 12 months and where such attachment has been made in execution of one and the same decree shall be finally exempted from attachment in execution of that decree. In this case the defendant is a railway employee and as such comes under the said Clause (i) of the Proviso to Sub-section (1) of Section 60 of the Code of Civil Procedure and the decree which is sought to be executed being the same decree in execution of which the salary in question was already under attachment for 24 months the said salary has become finally exempted from attachment in execution of that decree. The result, therefore, is that the salary of the judgment-debtor cannot now be attached in execution of the decree in question.

3. The decree-holder, however, tried to execute the decree through the Alipore Court by way of equitable execution by appointment of a receiver over the said salary. To that an objection was put in under Section 47 of the Code of Civil Procedure by the judgment-debtor. That objection came up for hearing before the learned Subordinate Judge, Third Court, Alipore, and by his order dated 3rd January 1955 the learned Judge dismissed the execution petition. The learned Judge held that the decree-holder's object was to get rid of the bar created by Section 60(1) proviso C. P. C. and the decree-holder cannot be allowed to do so. The learned Judge further held that the salary which Is exempted from attachment cannot be reached in execution by appointment of a receiver by way of equitable execution. It is against this decision of the learned Subordinate Judge that the present appeal has been filed.

4. The question now raised before us, namely, whether or not the decree-holder can take recourse to equitable execution and get a Receiver appointed over the very property which is exempt from attachment in execution of the decree in question, because of the provisions of Section 60 of the Code of Civil Procedure came to be considered in a number of decisions both of this Court and of the other Courts. Different views have been taken on this matter in different cases. In the case of Secretary of State for India in Council v. Bai Somi, ILR 57 Bom 507 : (AIR 1933 Bom 350) (A), the question arose whether or not in respect of maintenance allowance payable under a compromise decree, which cannot be attached under Section 60(1) of the Code of Civil Procedure, a receiver could be appointed. Their Lordships held that this could not be done. The Chief Justice Beaumont in the course of his judgment observed 'If these exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost.' A different view was taken by the Madras High Court in thecase of Secretary of State for India in Council v. Venkata Lakshmanna, ILR 49 Mad 567: (AIR 1926 Mad 565) (B), and by a Division Bench of this Court in the case of Baramdeo v. Mrs. Fay Smith, 44 Cal WN 636 (C). In both these cases reliance was placed on the decision of the Privy Council in the case of Sundar Bibi v. Raj Indranarain Singh, ILR 43 All 617: (AIR 1921 All 120) (D). A different view however was taken by this Court in the case of Dominion of India v. Ashutosh Das, : AIR1950Cal212 . In that case Roxburgh J., sitting singly held that it was an improper use of the equitable remedy to employ it to avoid a very definite bar created by statute law to achieving the very object for which the receiver is appointed. A Division Bench of the Court however in the case of Union of India v. Hira Debi, : AIR1951Cal25 , took a view different from what was taken by Roxburgh J. That case related to the Provident Fund Money. Section 3 of the Provident Funds Act made the Provident Fund Money immune from attachment under a decree or order. The question which arose in that case was whether or not a Receiver could be appointed in respect of that money. Their Lordships held that the word 'attachment' has a well-known and well-defined meaning and its contents should not be enlarged by speculation as to the object of the Act or the intention of the legislature and that in a fitting case a receiver could be appointed by way of equitable execution in reS-pect of money standing to the credit of a subscriber to a provident fund although Section 3 of the Provident Funds Act precludes attachment of the Provident Fund Money under a decree or order of a Court. Sinha J. who delivered judgment in that case relied on the decision of the Privy Council in the case of Rajindra Narain Singh v. Sundar Bibi , and held that the view taken by their Lordships of the Judicial Committee agreed with the view which their Lordships were taking in that case. Sinha J. further observed that the view taken by Beaumont C. J. in ILR 57 Bom 507:(AIR 1933 Bom 350) (A), was contrary to the decision of their Lordships of the Privy Council in Rajindra Narain Singh's case (G). There was an appeal against the said decision of this Court. In the said case of The Union of India v. Hira Debi (F), to the Supreme Court and the Supreme Court reversed the said decision and set aside the order appointing a receiver in respect of the Provident Fund Money. Union of India v. Hira Devi, : [1952]1SCR765 . Their Lordships of the Supreme Court did not accept the view taken by this Court as to the effect of Rajindra Narain Singh's case (G). N. Chandrasekhara Aiyar J. who delivered judgment of the Supreme Court in that case observed that the decision of the Privy Council in that case was not an authority for the general proposition that even though there is a statutory provision against attachment and alienation of a particular species of property, it can be reached by another mode of execution, that is, the appointment of a receiver. As to the effect of the said decision His Lordship held as follows :

'Taking the prayer of the judgment-creditor to be that the right of maintenance be proceeded against, Their Lordships observed that the right was in point of law not attachable and not saleable. If it was an assignment of properties for maintenance and the amount of which was not fixed it was open to the judgment creditor to get a receiver appointed subject to the condition that whatever may remain after making provision for maintenance of judgment-debtor should be made available for the satisfaction of the decree debt. The right to maintenance could not be attached or sold. In so far as the decree-holder sought to attach this right and deprive the judgment debtor of his maintenance he was not entitled to do so, but where his application for appointment of a receiver was more comprehensive and sought to get at any remaining income after satisfying the maintenance claim the appointment of receiver for the purpose was justified. The decision of the Privy Council does not lay down anything beyond this.'

5. His Lordship then referred to another decision of the Privy Council (Wasif Ali v. Karnani Industrial Bank Ltd. and observed that line of reasoning followed in this case clearly indicates where there is no disposing power and the statute imposes an absolute bar on alienation or attachment on grounds of public policy, execution should not be levied.

6. Before us it was contended by the learned Advocate for the appellant that the said case of Union of India v. Hira Debi (H) was distinguishable from the present one. He contended that their Lordships of the Supreme Court in that case were considering a position where there was not only a bar on attachment but also a bar on alienation and their Lordships were not dealing with a case where there was only a bar against attachment as in the present one. I am unable to accept this contention. Their Lordships in their judgment made it clear that the conclusion to which their Lordships arrived did not apply to the arrears of salary and allowances due to the judgment-debtor as they stand upon a different legal footing, because, although the salary was not attachable to the extent provided in Section 60(1) of the Code of Civil Procedure, there was no such exemption as regards the arrears of salary. Thus it appears to me that the decision at which their Lordships arrived was based on whether or not the fund in question was liable to or exempt from attachment. That this was so becomes clear from the following observations of N. Chandrasekhara Aiyar, J. made while dealing with the decision of the Judicial Committee in 96 :

'This line of reasoning indicates clearly that in cases where there is no disposing power and the statute imposes an absolute bar onalienation or attachment on ground of publicpolicy, execution should not be levied'.

Thus, N. Chandrasekhara Aiyar J. held that where there is an absolute bar on alienation or absolute bar on attachment on grounds of public policy, execution should not be levied. In my opinion, the bar on an attachment to the extent as laid down in Section 60 of the Code of Civil Procedure, in any event, so far as it relates to the 'salary of public officer, or of any servant of the Railway Company or of local authority is based on grounds of public policy. That being so, no execution can be levied in respect of such salary. In this connection reference may be made to the observations of Beaumont C. J, in the said Bombay Case and with which I respectfully agree. The learned Chief Justice observed that if exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost. In my view also, Roxburgh J., was right in his conclusion when he held that it was an improper use of that equitable remedy to employ it to avoid a very definite bar created by statute law to achieving the very object for which the receiver is appointed. In my opinion, therefore, the decision of the learned Subordinate Judge was right and should be upheld.

7. The result, therefore, is that this appeal fails and is dismissed with costs the hearing fee being assessed at two gold mohurs.

N.K. Sen, J.

8. I agree.


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