P.B. Mukharji, J.
1. This is a short point in execution. The old familiar point is whether attachment is permissible on what is contended to be Provident Fund money. The decree-holder, as now substituted, seeks to attach the amount deposited under the head Deposit Miscellaneous 'E' under T.V. No. 8 of October, 1950 in the name of the judgment-debtor C. Gregory lying with the Divisional Account Officer, Danapur under the final disposal and control of Chief Accounts Officer and Financial Adviser, Eastern Railway formerly E.I. Railway, 17 Netaji Subhas Road, Calcutta, and payment of the same to the decree-holder. It is said in column 10 of the Tabular Statement that the amount lying is Rs. 7,381/13/-.
The decree was dated 13-3-1947. It is Unnecessary to go into the records of the long history of unsuccessful attempts at realising this decree. The Judgment-debtor Gregory was a driver under the Railway Administration. I understand he has resigned or retired and is now in Scotland.
2. This sum of money arises out of his Provident Fund with the Railway.
3. Mr. Lahiri who appears for the decree-holder contended that this money was liable to attachment because it had shed its character as Provident Fund by reason of certain facts. Those facts may briefly be stated. On 30-8-1949, it to said that a cheque for Rs. 7,381/13/- was issued in the name of Kashi Prosad Agarwalla and was sent to the Divisional Cashier, E.I. Railway, Danapur. This cheque, however was not actually paid or even delivered to the decree-holder.
I need only say that Kashi Prosad Agarwalla, the decree-holder, gave evidence in this matter which was being tried on evidence. One of the points urged in this connection is that the sum of Rs. 5,781/13/- relating to special contribution to Provident Fund was credited by the Railway in the name of Kashi Prosad Agarwalla as Deposit Miscellaneous 'E' under T.V. No. 2 of December, 1949 and Rs. 1,600/- relating to original Provident Fund was credited in the name oi Kashi Prosad Agarwalla in Deposit Miscellaneous P.F. under T. V. No. 2, December, 1949.
The second fact on which Mr. Lahiri relies if that there was another attempt to pay by a cheque dated the 26th/27th August 1950 on which date a cheque was made out for payment to Kashi Prosad. That cheque also was never handed over to Kashi Prosad, There was no delivery and no payment to him. Under T. V. No. 8, the sum was kept by the Railway under Miscellaneous Deposit 'E'.'
4. On these two facts that there were attempts by the Railways themselves, first, on 30-S-1949 and, secondly, on 25-8-1950 to pay by cheque the sum of money, Mr. Lahiri contends that the Provident Fund has changed its character. For this purpose he relies on the decision of S.R. Das J., in -- 'Central Bank of India Ltd. v. M.V. V. Rao', AIR 1949 Cal 144 (A).
That case, however, is of no assistance to Mr. Lahiri because there the Railway Company had actually issued and delivered to the subscriber a cheque for the Provident Fund amount which became payable to him on his retirement from service. The cheque was in fact in currency because he had endorsed it. Therefore, it was held there that the decree-holder could attach that debt under Order 21, Rule 46.
Here this sum of money represents the amount of the Provident Fund of the judgment-debtor Gregory and never left the Railway administration. He never received it in any shape or form nor did he negotiate it in any form. All that the Railway has done is to transfer it from the open Provident Fund Account to the closed Provident Fund Account.
Under Rule 1023 appearing at p. 1021 in the Indian Railway Code of Accounts Department, Part I, Second Reprint, it is said in Sub-clause (3) thereof under the head 'Miscellaneous'-
'Under this sub-head are included cash, security deposit, earnest money given by tenderers for contracts, closed accounts of the Provident Fund and defence savings Provind Fund, Court attachment, recoveries, deposits by other Railways and administration on account of estimated costs etc.' The transfer, therefore, from the open Provident Fund to the Miscellaneous Account does not alter the character, of the Provident Fund money as such. The money still remains in the Provident Fund because this Miscellaneous Account 'E' represents among other things closed accounts of the Provident Fund.
It is necessary to emphasise here that so far as the subscriber is concerned, he has not drawn this money yet nor has it been paid to him nor any attempt made to be paid to him by the Railway. It is still standing in the account of the Railway Administration as Provident Fund. The fact that it has been transferred from the current or open Provident Fund Account to closed Provident Fund Account does not in my opinion in the least alter its character as Provident Fund.
I need only add here and repeat what I have said already that Gregory has retired and resigned and when a person retires or resigns, his Provident Fund from the current or open Account is placed with the closed account which is Miscellaneous Account 'E'. On the merits, therefore, I am entirey unable to accept Mr. Lahiri's contention that in the facts of this case the Provident Fund has been converted or has changed its character as Provident Fund so as to become liable to attachment.
5. It will be proper to refer to the Provident Funds Act and to the relevant sections of the Civil Procedure Code. Now Section 2(a) of the Provident Funds Act, 1925 defines compulsory deposit as meaning a subscription to or deposit in a Provident Fund which under the Rules of the Fund is not until the happening of some specified contingency, repayable on demand otherwise than for purposes mentioned therein.
It will be seen from this definition that compulsory deposit means a subscription to or deposit in a Provident Fund. But this statutory definition does not specify any particular account in which the Provident Fund has to remain. Therefore, so long as the Provident Fund is Provident Fund and a subscription is made to such Fund, that is regarded by law as compulsory deposit within the meaning of that definition.
The next section in this connection is Section 3 of the Provident Funds Act. That section provides:
'A compulsory deposit or any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not he liable to attachment, decree or order,' etc. It will again be seen from here that the compulsory deposit in the Provident Fund is not liable to be attached. It does not say that such Provident. Fund shall have to remain in any particular account and the moment it changes from one account to another within the Government itself or within the Railway Administration itself under its own rules for accounting and without either the knowledge or instigation of the subscriber himself, then by the mere fact of its perambulation from one account to the other it ceases to be Provident Fund and becomes liable to attachment. To my mind, that would be a most senseless construction.
Reference to the Civil Procedure Code makes the point also quite clear. Section 60(k), Civil P.C. in excluding or giving immunity to the Provident Fund from attachment says:
'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.'
This provision clearly indicates that where the compulsory deposit or any other sum is a sum 'in or derived from any fund to which the Provident Funds Act applies', it is immune from attachment. Here again, it does not stipulate that the sum has to remain in a particular account. A deposit which is 'derived' from the fund, or a sum which is derived from the fund to which the Provident Funds Act applies is enough. It is clear that the Miscellaneous Account 'E' in which the present sum of money stands represents accounts for closed provident fund money. Therefore the money intended to be attached is provident fund and therefore' immune from attachment under the law.
6. Before I conclude it is necessary perhaps to say that on behalf of the decree-holder evidence is given by Kasi Prosad Agarwalla and on behalf of the Union of India and the Railway, Mr. Valla, the Deputy Financial Adviser gave evidence. Mr. Agarwalla's evidence is largely hearsay and he admits that he never saw the cheque nor was there any delivery of the cheque to him. Mr. Valla explained satisfactorily the nature of Miscellaneous Account with reference to the Railway Code.
7. I am satisfied on the facts and on the construction of the Provident Funds Act, the Civil Procedure Code and the Account Code of the Railway, that this sum of money against which attachment is sought is not liable to be attached on the ground that it represents the provident fund of the judgment-debtor -- Gregory.
8. The application, therefore, is dismissed.There will be no order as to costs. Certified forcounsel.