JUDGMENT
R.M.S. Khandeparkar, J.
1. Leave to delete the respondent Nos. 2 and 3. Heard the Advocates for the parties. Rule. By consent, the rule is made returnable forthwith.
2. The petitioner challenges the order dated 14th March, 2002 passed by the trial Court directing the petitioner to secure the amount of Rs. 2,01,026/- i.e. the suit claim, out of pensionary benefits which he is likely to receive on or after 31-3-2002. The order is stated to have been passed for the purpose of detention and preservation of the amount sufficient to satisfy suit claim. The order is stated to have been passed in terms of the provisions contained in Section 94(C) of Civil Procedure Code.
3. Apparently, the order has been passed for the purpose of detention and preservation of the amount in order to facilitate the respondent to recover the suit claim in case he succeeds in getting a favourable decree. Undisputedly, the Court is empowered to pass the order for detention, preservation or inspection of any property during the pendency of the suit. However, such power can be in relation to the property, which is the subject matter of the suit or as to which any question may arise in the suit. In other words, the property to be preserved or detained or inspected must be one which is in one way or other related to the matter in issue in the suit. This is very clear from the provisions of law under Order 39, Rule 7 of Civil Procedure Code. Therefore, such power cannot be exercised in relation to the property which is in no way concerned with the dispute in the matter.
4. It is the case of the respondent-plaintiff that pursuant to grant of Indian Credit Card Facility to the petitioner, he had withdrawn various amounts from the different branches of the respondent-bank and, therefore, his account with the respondent-bank had become overdrawn account and consequently the petitioner become liable to pay the sum of Rs. 2,01,026/- to the respondent-defendant. The suit is, therefore, for recovery of money allegedly due to the respondent-bank by the petitioner on account of overdrawing of amount from his account while enjoying the facility under the credit card. Undisputedly, the amount which is likely to be received by the petitioner as his retirement or pensionary benefits is neither the subject matter of the suit nor in any manner relates to the matter in dispute and, therefore, no such order could have been passed under order 39, Rule 7 of Civil Procedure Code.
5. Once there are specific provisions for taking action for the purpose of detention and preservation of the subject matter of the suit or the property in dispute and the same being contemplated under Order 39, Rule 7 of Civil Procedure Code taking resort to some other provisions of Civil Procedure Code for the such purpose cannot arise.
6. As regards the powers of the Court under Section 94(e) of Civil Procedure Code to pass interlocutory order, to prevent the ends of justice from being defeated and as it may appear to be just and convenient, if it is so prescribed. It is to be noted that the execution of such powers under the said provision has necessarily to be in relation to the subject matter of dispute or the property relating to the dispute in the matter. Certainly, such power cannot be resorted to in relation to the property totally foreign to the dispute and unconnected with the claim of the parties to the suit.
7. Besides, the expression, “if it is so prescribed” in Section 94 reveals the limitation of and the restrictions for exercise of such powers by the Court. This has been well explained by Calcutta High Court in Union of India v. Sailendra Nath Chakraborty Thakur wherein it has been held that:
“The trial Court seems to think that in order to prevent the ends of justice from being defeated the court can make such other interlocutory orders, as may appear to the court just and convenient and it is urged that interlocutory order for granting subsistence allowance is one which comes under Clause (e) to Section 94 of the Code of Civil Procedure. But there is one proviso the Court may make such order provided “it is so prescribed” Evidently this means if the Rules under the Code of Civil Procedure prescribe for such other interlocutory order, the Court would then have power to make an order prescribed by the Code itself. But there is no provision in the code prescribing that during the pendency of a suit for declaration that an order for transfer is void, the court would be entitled to grant subsistence allowance. Subsistence allowance or salary is not the subject matter of the suit and as it is not the subject matter of the suit it cannot come under Order 39. Therefore, the court below has no power under Section 94 of the Code of Civil Procedure to make any interlocutory order regarding subsistence allowance.”
I am in respectful agreement with the decision of the Calcutta High Court.
8. By the impugned order the trial Court has virtually imposed restriction upon the disbursement of the pensionary benefits which the petitioner is yet to receive. The Apex Court in Union of India v. Jyoti Chit Fund and Finance and Ors. , while considering the point as to whether it is permissible in law for amounts representing provident fund contributions and pensionary benefits to be attached, having due regard to Sections 3 and 4 of the Provident Fund Act, 1925, Section 11 of Pensions Act, 1871, and section 60(1) provisos (g) and (k) of Civil Procedure Code held that the attachment of such amounts, is prohibited and further ruled that, “it will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still to be ordered by a Court.” It was further held that the Provident Fund accounts, pension and other compulsory deposits covered by the provisions of Sections (3) and (4) of the Provident Fund Act, read with Section 2(a) of the Pensions Act, retain their character until they reach the hands of the employee and any other view would reduce the protection assured under the said provisions of law to illusory formality.
9. It was sought to be contended that the protection assured under the said Act is till the amount is paid to the party and not thereafter. Undoubtedly, the said issue does not arise for consideration in this case, as the impugned order relates to the amount yet to be received by the Petitioner as the pensionary benefits. Any such order, prior to the receipt of the amount by the Petitioner would virtually result in denying the protection assured to the petitioner under the said Act, and would reduced the protection assured under the relevant statutes to “illusory formality” as has been observed by the Apex Court in Jyoti Chit Fund’s case.
10. The learned Advocate for the respondent has submitted that in view of what has been stated by the petitioner in the ground No. IX in the Revision Application, the respondent would take necessary steps in that regard, in order to secure the rights of the respondents in relation to the suit claim and for that purpose the impugned order may not be interfered with at least for period of four weeks.
11. In the result, the petition succeeds. The impugned order is set aside. Rule is made absolute in above terms with no order as to costs. On oral request by the learned Advocate for the respondent, the petitioner is directed not to disburse of the amount if any, with him, sufficient to meet suit claim for a period of four weeks from today.
12. The parties to act on a copy duly authenticated by Sheristedar of this Court.
