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Superintendent, R.M.S. (C) Division Vs. R.M.S. (C) Division Co-operative Credit Society, Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal135
AppellantSuperintendent, R.M.S. (C) Division
RespondentR.M.S. (C) Division Co-operative Credit Society, Ltd.
Excerpt:
- .....of the government to withhold and remit to the court a sum of rupees 15 every month from the salary of opposite party no. 2 and a sum of rs. 12-8-0 a month from the salary of opposite party no. 3 till the decretal dues were satisfied. the court proceeded on the view that as the salary enjoyed by opposite party no. 2 was rs. 130 a month, the first rs. 100 of the salary as well as half of the remainder aggregating to rs. 115 was exempt from attachment under section 60 (i), civil p.c. and the balance amounting to rs. 15 only was available for payment to the creditor. similarly, with regard to opposite party no. 3 whose pay at that time was rs. 125 a month, a sum of rs. 12-8-0 was attachable under order 21, r. 48, civil p.c. the rest being immune from attachment under section 60 (i),.....
Judgment:

B.K. Mnkherjea, J.

1. The material facts involved in this case are not in controversy and may be shortly stated as follows: One Khudiram Mukherji who was an employee in the R.M.S. (C) Division of the Postal Department had borrowed a certain sum of money from the opposite party NO. 1 which is a Co-operative Credit Society of the R.M.S. Division. The opposite parties Nos. 2 and 3 who are also sorters in the same Department stood sureties for the debt. Khudiram died without satisfying his debt, and after his death the opposite party NO. 1 obtained an award against the two sureties under the provisions of the Co-operative Credit Societies Act for a sum of about Rs. 240. The award was put into execution in execution ease No. 167 of 1941 of the Court of the Third Munsif at Howrah. The creditor prayed for realisation of the money due on the award by attachment of the salaries of the two judgment-debtors. On 13th September 1941, the executing Court ordered attachment to issue under Order21, Rule 48, Civil P.C. and directed the postal department of the Government to withhold and remit to the Court a sum of Rupees 15 every month from the salary of opposite party NO. 2 and a sum of Rs. 12-8-0 a month from the salary of opposite party NO. 3 till the decretal dues were satisfied. The Court proceeded on the view that as the salary enjoyed by opposite party NO. 2 was Rs. 130 a month, the first Rs. 100 of the salary as well as half of the remainder aggregating to Rs. 115 was exempt from attachment under Section 60 (i), Civil P.C. and the balance amounting to Rs. 15 only was available for payment to the creditor. Similarly, with regard to opposite party NO. 3 whose pay at that time was Rs. 125 a month, a sum of Rs. 12-8-0 was attachable under Order 21, R. 48, Civil P.C. the rest being immune from attachment under Section 60 (i), Civil P.C. as mentioned above. Upon this attachment Order being issued the petitioner in this Rule who is the disbursing officer in the R. M. Section (C) Division represented to the Court by letters that there was difficulty in the way of complying with its directions inasmuch as opposite party No. 2 had been contributing Rs. 22 a month out of his salary to the General Provident Fund and Defence Savings Provident Fund, and the monthly subscription of opposite party NO. 3 to these funds amounted to Rs. 12 a month. It was pointed but that these were compulsory deposits to which the provisions of the Provident Funds Act (1925) were applicable and consequently they were exempt from attachment under Section 60 (k), Civil P.C. On receipt of these letters the learned Munsif ntimated to the Post Master General, Bihar and Orissa Circle, that if the postal authorities wanted to challenge the propriety of the Court's order, they should put in objections formally through a lawyer. Thereupon two applications were filed by the petitioner obecting to the attachment Order made by the Court. The objections raised were of a twofold character: It was contended in the first place that the Court had no local jurisdiction to entertain the execution ease and issue the attachment order. The second point taken was that the contributions to the provident fund were not attachable under the Code of Civil Procedure. The learned Munsif by his Order dated 6th April 1943, dismissed these applications. It is against this Order that the present Rule has been obtained.

2. Mr. Rama Prosad Mukherji, who appeared in support of the Rule has contended before us that cls. (i) and (k) of Section 60, Civil P.C. should be read separately and that the Legislature intended to exempt not only the salary of a public officer upto Rs. 100 and half of the remainder, but also independently of that, such amount as is compulsorily deducted from the salary of the officer as contribution to the provident fund. It is said that so far as opposite party 2 is concerned, he is entitled to immunity from attachment in respect of Rs. 115 under Section 60 (i), Civil P.C. and of a sum of Rs. 22 in addition to that under Clause (k) of the section and the result consequently is that nothing remains of his salary which is attachable under law. As regards opposite party 3, it is stated that the amount of his contribution to the general provident fund being Rs. 12 a month, a sum of Rs. 3 only would be available for attachment after allowing exemptions under cls. (i) and (k) of Section 60, Civil P.C.

3. Mr. Apurbadhan Mukherji who appeared for the Co-operative Society has argued on the other hand: (1) that the petitioner had no locus standi to intervene and file objections in the execution case; (2) that Clause (k) of Section 60, Civil P.C. affords no protection to the judgment-debtors in the present case, as it relates to deposits already made in the provident fund and not to contributions which might be made in future; and (3) that the judgmentdebtors being optional subscribers to the provident fund, their contributions could not rank as compulsory deposits in law.

4. We may say that we felt some doubt at the outset as to whether the petitioner had any locus standi to appear in this execution proceeding and oppose the claims of the creditor. He is admittedly neither a judgment-debtornor a garnishee, and as a disbursing officer the law only empowers him to act in the way indicated in Order 21, Rule 48, Sub-rule (2), Civil P.C. if the circumstances mentioned in that Sub-rule are present. It seems, however, that in a sense he is a person affected by the Order of the Court; for the direction of the Court was sent to him, and under Sub-rule (3) of Order 21, Rule 48, he can be made personally liable if he pays any sum in contravention of such direciions. In these circumstances, his right to apply to the, Court and bring to its notice that the Order which he was asked to obey is illegal or prohibited by statute has been recognized in some cases and it has been held that the Court has inherent powers to consider such applications: vide the cases in I.L.R. (1938) l Cal. 4331 and 43 Bom. L. Rule 758.2 We cannot say that these decisions are wrong and we are unable, therefore, to agree with the Court below that the petitioner had no locus standi to make these applications.

5. Coming now to the main point raised by the petitioner, we are of opinion that Mr. Rama Prosad Mukherji is not right in his contention that the attachment Order made in this case offends against the provision of Section 60 (k), Civil P.C. It is true that Clause (k) of Section 60 is independent of Clause (i). In fact the two Clauses relate to two distinct matters and have different objects in view. Clause (i) of Section 60 lays down the extent to which the salary of a public officer would be exempt from attachment, and the object undoubtedly is to enable the officer to have sufficient means to maintain himself and his family in a way suitable to his position. Clause (k) on the other hand, re-enacts the provisions of Section 3, Provident Funds Act (1925) and exempts from attachment all 'compulsory deposits' in provident funds. The expression 'compulsory deposit' is defined in Section 2 (a), Provident Funds Act as

a subscription to or deposit in a provident fund which under the rules of the fund is not, until the happening of some specified contingencies repayable on demand otherwise than for the purpose etc. etc.

6. This clearly indicates that there cannot be a compulsory deposit unless the money is actually deposited in or subscribed to a provident fund, for no question of re-payment can possibly arise unless the money is received by the authorities managing the fund. The whole policy of the Provident Funds Act is to protect from attachment all deposits and subscriptions so long as they are in the hands of the fund authorities. As the exemption ceases as soon as the amount is paid out to the person entitled to it, so no exemption can attach to any portion of the salary of a public officer unless and until it actually reaches the fund. In the ease before us no Order has been made by the Court attaching the deposits of any of the judgment-debtors in the provident fund. What has been directed to be attached is that portion of the salary of each which is not exempt from attachment under Clause (i) of Section 60, Civil P.C. It may be that the judgment-debtors' contributions to the Provident Fund would now have to be made from the non-attachable portions of their salaries, but there is no law which requires that they should be paid only out of the attachable portion. Mr. Rama Prosad Mukherji has drawn our attention in this case to a decision of Horwill J. sitting singly in A.I.R. 1940 Mad. 766.3 There, it was held inter alia that cls. (i) and (k) of Section 60 should be taken separately, and to that portion of the salary which is not attachable under Clause (i) of Section 60 must be added the amount which is to be deducted from the salary of the officer as his contribution to the Provident Fund. It was rather assumed than decided that even a subscription not actually paid to the Provident Fund would rank as compulsory deposit, and this question was not considered by the Court at all.

7. The result, therefore, is that we are unable to hold that the attachment Order made by the Court in the present case is illegal or contrary to law and should be set aside. So far as the disbursing officer is concerned, we do not think that there is any difficulty in his way. If the judgment-debtors do not choose to discontinue subscribing to the Provident Fund, then the officer would, be perfectly justified in deducting their subscriptions from the portions of the salaries that have not been attached.

8. The third point raised by Mr. Apurba Dhan Mukherji and which seems to have been accepted by the Court below does not appear to us to be sound. The essence of a compulsory deposit as the definition, shows consists in the fact that it is not refundable except under the contingencies specified in the Act. Even an optional subscriber cannot demand repayment of his deposit at his option, and consequently such deposit also may be regarded as a compulsory deposit within the meaning of Section 60 (k), Civil P.C. Having regard to the view which we have taken regarding the interpretation to be put upon the expression 'compulsory deposit' in Section 60 (k), Civil P.C. it is not necessary for us to decide this question.

9. The result therefore is that the Rule is discharged though not on the grounds put forward by the learned Munsif. We make no Order as to costs.

Biswas, J.

10. I agree. In my opinion, Clause (k) of Section 60, Civil P.C. which exempts from attachment 'all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment or sale,' does not mean that such portion of the salary of an employee as is required for the purpose of paying his Provident Fund contribution is rendered unattachable. So far as salary is concerned (i) indicates the portion which is made non-attachable. Clause (k) comes into operation only when the amount which is deducted from the salary on account of the Provident Fund is paid into the fund. It is then that it becomes a compulsory deposit in the fund. There is no question in the present case of the decree-holder seeking to attach any sums lying in deposit in the Provident Fund to the credit of the judgment-debtors. I am unable to accept Mr. Rama Prosad Mukherji's argument that the result of giving effect to the Order of attachment will be to compel the petitioner to infringe the provisions of Section 60, Civil P.C. or of the Provident Funds Act or any rules made under the said Act. There is nothing to indicate that the amount necessary for deposit in the Provident Fund may not be recovered by the disbursing officer by reduction from the non-attachable portion of the salary, meaning by 'non-attachable portion' that amount of the salary which will be left over after attachment of the portion liable to attachment under Clause (i).


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