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P. Dhanapal vs P. Nagiah on 28 April, 1999

Madras High Court
P. Dhanapal vs P. Nagiah on 28 April, 1999
Author: K Sampath


ORDER

K. Sampath, J.

1. The civil revision petition has been filed against the order of the X Assistant City Civil Judge, Madras, in E.A. No. 852 of 1998 in E.P. No. 1432 of 1997 in O.S. No. 5890 of 1995 on its file. The suit was filed under Order 37, Rules 1 and 2 of the Code of Civil Procedure by the revision petitioner against the respondent and one Kangavalli for recovery of money due. Along with the suit he filed the application in I.A. No. 113 80 of 1995 for interim attachment of a sum of Rs. 40,000 lying to the credit of the first respondent in Savings Bank Account No. 50958/51-P in Indian Bank, Royapuram Branch, Chennai-13. An interim order of attachment was passed on 4.9.1995. On 20.9.1996, after hearing the respondent herein and the bank, the trial court passed the following order:

Subject to the disposal of the suit the petition is closed.

2. The respondent and Kanagavalli had in the meantime filed I.A. No. 16613 of 1995 for leave to defend and the same was dismissed on 30.9.1996 and the suit was decreed on the same day and the interim attachment was made absolute.

3. It would appear from the records that the respondent is a retired Port Trust employee. He had a Savings Bank Account bearing old No. 35476/81 and new No. 50958/51-P. He had given a letter of undertaking on 11.12.1993 to Indian Bank, Royapuram Branch, requesting it to collect his pension and credit the amount to his Savings Bank Account No. 50958/51-P with the bank at the Royapuram Branch every month on the strength and on the basis of the pension order No. 7258 dated 1.9.1993 issued by the Madras Port Trust. Thus, it would be clear that as per instructions from the respondent his pension was being sent by the Port Trust direct to his bank, viz., Indian Bank, Royapuram Branch, for being credited in his Savings Bank Account.

4. The revision petitioner filed E.P. No. 1432 of 1997 directing the garnishee Indian Bank to pay the E.P. claim of Rs. 2300.50 from and out of the amount lying in Savings Bank Account No. 50958/51-P of the respondent herein by issuing a banker’s cheque for the E.P. amount in favour of the revision petitioner. The respondent filed a counter and after hearing both sides the executing court allowed the E.P. by issuance of pro order to garnishee on payment of proper batta by the revision petitioner returnable by 19.1.1998. The respondent filed application E.A. No. 852 of 1998 purporting to be under Order 21, Rule 97 and Section 151 of the Code of Civil Procedure for cancellation of the order alleged to have been passed on 6.12.1997 in E.P. No. 1432 of 1999 directing attachment of the pension of the respondent. The lower court having held that in view of the provisions of Section 60(1)(g) of the Code of Civil Procedure there could not be attachment of person’s pension, allowed the application and as against that, the present civil revision petition has been filed.

5. It is contended by Mr. Chenchurama Reddy, learned Counsel for the revision petitioner, that there was no order of attachment passed by the executing court either on 20.9.1996 or on 2.2.1998 or on any other date and the executing court made a serious mistake in even numbering the application. It was only the trial court which passed the order of attachment in LA. No. 11380 of 1995 and the lower court only directed issuance of pro-order to garnishee! According to the learned Counsel the order in E.A. No. 852 of 1998 is a nullity as the executing court cannot go behind the decree.

6. Mr. Thennarangan, learned Counsel for the respondent, sought to support the order of the lower court. His main argument is that the pension granted or continued by the Government on political considerations or on account of past services or present infirmities or as a compassionate allowance and no money due to become due on account of any such pension or allowance shall be liable to seizure attachment or sequestration by process of any court at the instance of the creditor for any demand against the pensioner or in satisfaction of a decree or order of any such court. According to the learned Counsel, in view of the provisions of Section 60(1)(g) of the C.P.C. there is a clear bar and the order of attachment granted had been rightly set aide by the lower court. The learned Counsel also relied on a number of decision in support of his contentions. They are:

(1) Gulambhibi v. Sabarathanbibi . (2) Mangala singh v. Nagasingh 1962 B.L.J.R. 695. (3) Jagadishlal v. Mandanlal 1960 Raj.L. W. 606 and (4) Union of India v. Jothi Chit Fund and Finance and to Ors. A.I.R. 1976 S.C. 1963

7. The whole question is whether the money in the Savings Bank Account of the respondent/ judgment-debtor in the Indian Bank retains the character of pension so as to be vitiated by the over-powering embargo attached to the proviso to Section 60(1) of the C.P.C. The proviso to Section 60(1) says that the various particulars found in (a) to (p) shall not be liable to attachment and the particulars in (g) are as under:

Stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf and political pensions.

The pensions and other compulsory deposits covered by the provisions of the Pension Act, even according to the respondent, would retain their character only till they reach the hands of the employee. According to the learned Counsel for the respondent, attachment would be possible and lawful only after such amounts are received by the employee. The question is as to when such amounts can be stated to have been received by the judgment-debtor. The respondent/judgment-debtor has a Savings Bank Account in the Indian Bank, Royapuram. His pension amounts are received by the bank on his behalf and credited in his savings account. No doubt, till provident fund dues, pension, compulsory deposits etc. are actually paid to the Government servant who is entitled to them on retirement or otherwise, the nature of the dues is not altered. As long as the amounts are with the Government, the Government is a trustee for those sums and has an interest in maintaining the objection to attachment. But, the moment the dues leave the Government, they lose the character of Provident Fund dues, pensions of other compulsory deposits as the case may be and they become part of the assets of judgment-debtor. It is not his actual receiving in his hands that is material. The amounts reaching his Savings Account will by itself be sufficient for the operation of Section 60(1) proviso (g) to cease. Admittedly, the amounts due to the respondent are credited to his Savings Account in the Bank.

8. The decision of the Supreme Court relied on by the learned Counsel for the respondent in Union of India v. Jothi Chit Fund and Finance and Ors. does not say anything different. In paragraph 11 of the said judgment it is stated as follows:

We may state without fear of contradiction, that provident fund amounts, pensions and other cumpulsory deposits covered by the provisions we have referred to retain their character until they reach the hands of the employee. The reality of the protection is refunded to illusory formality if we accept the interpretation sought. We take a contrary view, which means that attachment is possible and lawful only after such amounts are received by the employee. If doubts may possibly be entertained on this question, the decision in Radha Kissen ‘s case erases them. Indeed, our case is a fortiori one, on the facts. A bare reading of Radhao Kissen makes the proposition fool-proof that so long as the amounts are provident fund dues then, till they are actually paid to the Government servant who is entitled to it on retirement or otherwise, the nature of the dues is also authority for the benign view that the Government is a trustee for those sum and has an interest in maintaining the objection in court to attachment.

9. In the view I am taking, the order of the lower court cannot stand and the same is liable to be set aside and accordingly it is set aside. The civil revision petition is allowed. However, there will be no order as to costs. Consequently, the stay petition C.M.P. No. 18072 of 1998 is closed.

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