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Biman Kumar Biswas Vs. Commercial Engineering Corporation Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 2240 of 1982
Judge
Reported inAIR1983Cal45,87CWN1
ActsCode of Civil Procedure (CPC) , 1908 - Section 60(1)
AppellantBiman Kumar Biswas
RespondentCommercial Engineering Corporation Pvt. Ltd. and ors.
Appellant AdvocateRobin Mitra and ;Sardar Amjad Ali, Advs.
Respondent AdvocateAsish Chandra Bagchi, Adv. for Opposite Party No. 1
DispositionRevision allowed
Excerpt:
- .....or on any plea of mistake seek review of the assessment of the attachable portion of the judgment debtor's salary and if the period of 24 months is to be calculated from every such date of review of reassessments, the exemption contemplated by the proviso may never be available to a judgment debtor. that certainly was not the intention of the legislature when it incorporated the proviso. moreover the learned judge in the executing court overlooked the express words used in the proviso and the clear implication thereof. it would be useful to refer to the terms of the proviso which may be set out as follows :-- '(i) salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance : provided that where any.....
Judgment:

Anil K. Sen, J.

1. This revisional application raises a short point with regard to the proviso to Clause (i) in the first proviso to Sub-section (1) of Section 60 of the Civil P. C

2. The opposite party No. 1 obtained a money decree against a partnership firm opposite party No, 2, and its partners including the present petitioner. That decree was put into execution in Money Execution Case No. 4/78. By an order dated November 23, 1978, the executing Court attached a sum of Rs. 100/- from the salary of the judgment debtor petitioner with effect from December 1978. On January 3, 1979, the decree holder opposite party No. 1 made a further application before the executing Court to the effect that a sum of Rs. 300/- should be attached out of the petitioner's salary since under Clause (i) of the proviso to Sub-section (1) of Section 60 of the Code such- portion of his salary could lawfully be attached. That ap-plication of the decree holder was allowed on September 13, 1980, when the executing Court directed that a sum of Rs. 300/- may be attached out of the salary of the judgment debtor petitioner. On December 5, 1980, the present judgment debtor petitioner filed two applications before the executing Court. In one of these applications he prayed for review of the assessment of the portion of his salary determined to be attachable and by the other he prayed for an order exempting his salary from any further attachment since his salary had been subjected to attachment in execution of one and the same decree for more than 24th months. Obviously, the petitioner sought for protection under the proviso to Clause (i) as aforesaid. The learned Judge in the executing Court rejected both the said applications by an order dated May 5, 1981 and the judgment debtor petitioner sought for a further review of that order in so far as his prayer for exemption from further attachment had been refused. That application had been rejected by the executing Court by the order impugned. Hence, this revisional application by the judgment debtor petitioner which is being heard on contest by the decree holder.

3. The short point, which has been raised by Mr. Mitra appearing in support of this revisional application for our consideration, is as to whether when the judgment debtor petitioner's salary had been subjected to an attachment continuously for a period of more than 24 months calculating the saidperiod on and from December 1978, that is, the initial attachment for a sum of Rs. 100/-in execution of one and the same decree, big salary is entitled to exemption from any further attachment. The learned Judge in the executing Court appears to have taken the view that it is only when the Court correctly determines the portion of the salary liable to attachment and attaches the same, that the limitation of 24 months prescribed by the proviso starts to run. Since in the present case though a sum of Rs. 100/- was attached with effect from December 1978, yet the correct assessment of the attachable portion of the petitioner's salary was made on September 13, 1980 when a sum of Rs. 300/- was directed to be attached and bence until a period of 24 months of attachment since that later date expires, the petitioner is not entitled to the exemption prescribed by the proviso.

4. On a careful review of the material provisions in this regard we are unable to sustain the view taken by the learned Judge in the executing Court. In our considered opinion, such a view may well frustrate the very object of the proviso since a decree holder may from time to time either on the ground of enhancement of salary or on any plea of mistake seek review of the assessment of the attachable portion of the judgment debtor's salary and if the period of 24 months is to be calculated from every such date of review of reassessments, the exemption contemplated by the proviso may never be available to a judgment debtor. That certainly was not the intention of the legislature when it incorporated the proviso. Moreover the learned Judge in the executing Court overlooked the express words used in the proviso and the clear implication thereof. It would be useful to refer to the terms of the proviso which may be set out as follows :--

'(i) salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance :

Provided that where any part of such portion of the salary as is liable to attachment has been under attachment whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall after the attachment has continued for a total period of twenty-four months, be finallyexempt from attachment in execution of that decree.'

It is quite clear on the terms of this proviso that even where a part of the attachable portion of the salary is attached continuously or intermittently for a total period of 24 months, the judgment debtor is entitled to the exemption prescribed. It is not necessary that the entire attachable portion of the salary ishould be subjected to such attachment before the judgment debtor becomes entitled to the exemption. The clause 'as is liable to attachment' qualifies the term 'portion of the salary', that is, the attachable portion of the judgment debtor's salary, a part whereof had been subjected to attachment. That clause does not mean, as the learned Judge in the executing Court seems to think, that until the Court correctly determines what is attachable, the period of 24 months does not start to run notwithstanding the fact that a part of the judgment debtor's attachable portion of the salary had already been attached. The proviso, in our view, cannot be read to convey any such implication as its terms clearly indicate otherwise.

5. Mr. Bagchi appearing on behalf of the decree holder sought to support the view taken by the learned Judge in the executing Court by putting forward twofold reasons. En the first place, according to Mr. Bagchi, the original order of attachment merges in the order passed on review and, therefore, it is the latter which must be treated to be the effective attachment so that the period of 24 months must run from that attachment. Secondly. Mr. Bagchi contends that to take any view other than the one taken by the learned Judge in the executing Court would result in the decree holder being deprived of his right to attach the entire attachable portion of the judgment debtor's salary. We are, however, not impressed by either of the two reasons assigned by Mr. bagchi. In the first place, it is wholly immaterial whether the initial order of attachment merges with the review order or not. The point for consideration is not when or how the order was made but if and when a part of the attachable portion of the judgment debtor's salary is actually attached. ' Once it is so attached the period starts to run which, however, could be suspended by suspending actual attachment. Moreover, for reasons already radicated hereinbefore, if we accept this contention of Mr. Bagchi, that may lead to material frustration of the very object of the proviso.

6. So far as the second reason assigned by Mr. Bagchi is concerned, the simple answer is that every decree holder may well avoid the suggested loss or prejudice by taking out the attachment only upon a proper assessment of the attachable portion of the salary of the judgment debtor in accordance with law or even in a case where he seeks review of any such assessment, by suspending the attachment pending disposal of his review application.

7. For these reasons, we are unable to sustain the view taken by the learned Judge tn the executing Court and we must uphold the claim of the judgment debtor petitioner that his salary earned the protection of total exemption under the proviso to Clause (i) of the proviso to Sub-section (1) of Section 60 of the Code from attachment in execution of the present decree on me expiry of 24 months of attachment calculated from December 1978. The decision of the learned Judge in the executing Court to the contrary is liable to be set aside since as an executing Court it ceased to have jurisdiction to continue the attachment after the expiry of the said period of 24 months in view of the statutory provisions referred to herein before and we direct accordingly.

8. The revisional application, therefore, succeeds and is disposed of accordingly. There will be no order for costs.

S.N. Sanyal, J.

9. I agree.


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