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Divisional Accounts Officer, Eastern Railway Vs. Radha Kissen Khaitan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2545 of 1956
Judge
Reported inAIR1959Cal666
ActsCode of Civil Procedure (CPC) , 1908 - Section 60(1) - Order 21, Rule 48(2) and 48(3)
AppellantDivisional Accounts Officer, Eastern Railway
RespondentRadha Kissen Khaitan and anr.
Appellant AdvocateBhabesh Narayan Bose, Adv.
Respondent AdvocatePrafulla Kumar Chatterji and ;Radha Kishun Khetan, Advs.
Cases ReferredUnion of India v. Hira Devi
Excerpt:
- .....dinapore, against two orders of attachment under order 21, rule 48 and order 21 rule 52 of the civil procedure code. the facts which are undisputed are these :2. opposite party no. 1 obtained a decree for money against opposite party no. 2 who is the driver of a railway engine under the eastern railway and levied execution of that decree in money execution case no. 2 of 1955 of the 3rd court of the subordinate judge at alipore. in that execution case, the decree-holder opposite party no. 1 obtained an order for attachment of the salary of opposite party no. 2 from the month of may, 1955 and a further order of attachment of a sum of rs. 3000/- which was held by the petitioner on behalf of the opposite party no. 2. the order of attachment of the salary was obtained under order 21, rule.....
Judgment:

Lahiri, J.

1. This Rule has been obtained by the Divisional Accounts Officer, Eastern Railway, Dinapore, against two orders of attachment under Order 21, Rule 48 and Order 21 Rule 52 of the Civil Procedure Code. The facts which are undisputed are these :

2. Opposite party No. 1 obtained a decree for money against opposite party No. 2 who is the driver of a railway engine under the Eastern Railway and levied execution of that decree in Money Execution Case No. 2 of 1955 of the 3rd Court of the Subordinate Judge at Alipore. In that execution case, the decree-holder opposite party No. 1 obtained an order for attachment of the salary of opposite party No. 2 from the month of May, 1955 and a further order of attachment of a sum of Rs. 3000/- which was held by the petitioner on behalf of the opposite party No. 2. The order of attachment of the salary was obtained under Order 21, Rule 48 and the order of attachment of the sum of Rs. 3000/- was obtained under Order 21, Rule 52 of the Civil Procedure Code. The petitioner, who is the disbursing officer of the Eastern Railway, objected to the two orders of attachment on different grounds. With regard to the attachment of the salary, the objection raised was to the effect that as the salary of the judgment-debtor was under a continuous order of attachment for more than 24 months till August, 1953, the judgment-debtor was entitled to a respite for a period of 12 months up to August, 1954, under the provisions of the proviso to Clause (1) of Section 60 of the Civil Procedure Code. The objection to the attachment of the sum of Rs. 3000/- was to the effect that this sum included a part of the salary of the judgment-debtor for the months of July and August, 1954 which was exempted from attachment under the proviso to Clause (1) of Section 60. It is conceded by the decree-holder opposite party No. 1 that the salary of the judgment-debtor upto the month of August, 1954 is exempted from attachment but it is claimed by the decree-holder that the amount which is held in deposit by the petitioner does not represent the salary of the judgment-debtor within the meaning of Section 60 of the Civil Procedure Code. The salary of the judgment-debtor has been attached with effect from the month of May, 1955 and consequently it is outside the period of exemption claimed by the judgment-debtor and there can be no objection to that order. With respect to the attachment of the sum of Rs. 3000/-, Mr. Bose, appearing for the petitioner, has contended before us that that part of this sum which represents the deductions from the salary of the petitioner for the months of July and August, 1954, should be excluded from attachment. It has been found by the executing court that the sum of Rs. 3000/- is made up of deductions made from the salary of the judgment-debtor from month to month at a certain percentage and it has also been found that this sum includes the deductions made from the salary of the judgment-debtor for the months of July and August, 1954. Upon this finding, Mr. Bose has contended that that portion of Rs. 3000/- which consists of the deductions from the salary for the months of July and August, 1954 should be exempted from attachment. The contention is that the salary of the judgment-debtor does not lose its character because a part of it has been deducted and held in custody by the disbursing officer in a separate account. Mr. Chatterji, appearing for the decree-holder opposite party, on the other hand, has contended that as soon as a part of the salary is deducted from the salary and held in a separate account, it loses its character of a salary and becomes attachable and that the proviso to Clause (1) of Section 60 of the Code of Civil Procedure has no application. We are of opinion that the argument of Mr. Chatterji must be accepted. A salary represents the total monthly remuneration received by an employee for services rendered by him to his employer and a part of it cannot be said to be his salary and if such a part is deducted by the employer and held in deposit for the purpose of meeting the dues of the employee's creditors, it cannot be said that the sum which is made up of such deductions represents the salary of the employee. In the second place, Section 60, Clause (1) does not apply to arrears of salary. Mr. Chatterji has cited before us the decision of the Supreme Court in the case of Union of India v. Hira Devi, : [1952]1SCR765 , Aiyar J. delivering the judgment of the Court observes as follows :

'This conclusion does not, however, apply to the arrears of salary and allowance due to the judgment-debtor as they stand upon a different legal footing. Salary is not attachable to the extent provided in Section 60. Civil Procedure Code, Clause (1), but there is no such exemption as regards arrears of salary.'

3. That part of Rs. 3000/- in respect of which exemption is claimed by the petitioner, at best, represents the arrears of salary due to the judgment-debtor for the months of July and August, 1954 and under the aforesaid observation of the Supreme Court, the exemption provided for in Section 60 of the Civil Procedure Code does not extend to it,

4. Apart from all these considerations, it appears that in his objection filed before the court below, the petitioner did not raise the point which has been argued before us by Mr. Bose. The petitioner filed his objection on the 15th September, 1955 and nowhere in the petition of objection filed on that date is it stated that any part of the sum of Rs. 3000/- includes the salary of the judgment-debtor for the months of July and August, 1954. I am, therefore, of the opinion that the point now raised before us by Mr. Bose on behalf of the petitioner is an afterthought based upon an accidental finding arrived at by the executing court. I am not prepared to interfere with the judgment of the executing court on a ground which was not raised by the petitioner in his objection under Section 60 of the Civil Procedure Code.

5. Mr. Bose has contended that under the provisions of Sub-rule (3) of Order 21, Rule 48 of the Civil Procedure Code, the Government or the Railway administration is liable for the money paid in contravention of the provisions of Rule 48 and according to Mr. Bose, if the money is paid out to the creditor of the judgment-debtor, it will be open to the judgment-debtor to sue the Railway administration for getting the money which is not attachable under Section 60 of the Civil Procedure Code. In my opinion, there is no substance in this argument. Under Sub-rule (2) of Order 21, Rule 48, the only duty of the disbursing officer is to return the order of attachment to the court which issued it stating the grounds of his objection and, if after considering the objection by the disbursing officer, the court refuses to withdraw the order of attachment, no liability attaches either to the disbursing officer or to the Government if he or it carries out the order of the executing court. The opening lines of Sub-rule (3) of Order 21, Rule 48, make the position quite clear and they are as follows :

'Every order made under this rule, unless it is returned in accordance with the provisions of Sub-rule (2), shall .......... ......... .. bind the (appropriate) Government or the railway (administration).'

The plain effect of this provision is that where the disbursing officer does not take objection to the order of attachment, any sum paid out in contravention of Section 60 of the Code of Civil Procedure can be recovered from the Government or the Railway administration but in case the disbursing officer takes any objection and that objection is overruled, no liability attaches either to the disbursing officer or to the Government. As I have already said, the only duty of the disbursing officer under Order 21, Rule 48 is to return the order to the court issuing it with a full statement of all the particulars of the existing attachment.

6. For the reasons given above, it is not possible for us to interfere with the judgment passed by the executing court. The Rule must accordingly be discharged with costs to opposite party No. 1.

Guha, J.

7. I agree.


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