IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 185 of 2005()
1. SHEEBA C.THOMAS, W/O.SIBY THOMAS,
... Petitioner
Vs
1. ROSAMMA THOMAS, W/O. THOMMAN THOMAS,
... Respondent
2. PRINCIPAL,
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent :SRI.M.NARENDRA KUMAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :09/06/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 185 of 2005
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Dated this the 9th day of June, 2009.
JUDGMENT
Raman, J,
This is an appeal against an order allowing the petition for
attachment before judgment. The operative portion of the order reads
thus:
“In the result the petition is allowed and the first
respondent is directed to furnish security to the tune of
Rs.2,44,800/- (Rupees Two lakhs forty four thousand and
eight hundred only) (plaint amount) on or before 4.10.2005
and the meanwhile conditional attachment of the arrears of
salary is granted prohibiting the second respondent
disbursing officer from disbursing the arrears of salary of
the first respondent/defendant.”
2. The appellant is the defendant in the suit. The suit is
one for money alleging that the appellant has no other valuable asset or
property other than the salary arrears proposed to be released in favour
of him by the second respondent. The appellant filed counter affidavit
contending that the petition itself is not maintainable and also denied
the execution of the promissory note. At the time of argument
however, has taken up a ground that the subject matter of the property
FAO/185/2005. 2
is exempted as per Section 60(1)(i) of the Code of Civil Procedure and
hence the petition be dismissed. After referring to the contentions of either
side and after referring to the decision of the Apex Court reported in Union
of India v. Smt. Hira Devi (AIR 1952 SC 227) the court held that
exemption for attachment of the salary under Section 60(1)(i) of the CPC
will not apply to arrears of salary. It is against the said order the present
appeal is filed.
3. Learned counsel for the respondents contended that the
appeal is not maintainable and assuming that the appeal is maintainable, he
sought to support the order impugned in this appeal on merits. But learned
counsel appearing for the appellant contended that the order now passed by
the court below is virtually under Order 38 Rule 6 of the CPC though in the
operative portion of the order it is said that the attachment is effected in case
he is not furnishing security on or before a particular date. It is his
contention that though Order 38 Rule 5(3) also provides for a conditional
attachment of the whole or any portion of the property so specified, the
present order is one passed under Rule 6(2). Thus according to him, if it is
an order passed under Order 38 Rule 6, it is an appealable order. It is also
contended that there is no material difference between salary and arrears of
FAO/185/2005. 3
salary. If the salary remains unpaid for a period, even after the due date it
becomes arrears and according to him there is no logic in treating the arrears
of salary different from salary. Learned counsel also placed reliance on the
decision of this court reported in Nalluswamy v. Veemban (1987(2) K.L.T.
153).
4. We heard the parties.
5. No doubt Order 38 Rule 5 of CPC provides for a conditional
attachment of the whole or any portion of the property specified or to show
cause why such a security should not be furnished. However, it is not
necessary that in all cases the court should also pass a conditional order of
attachment. It can merely call upon the defendant to show cause as to why
order of attachment before judgment shall not be passed. In case the court
directs the defendant to show cause, then, the defendant on showing cause,
the court may either dismiss the application or if he fails to show cause, it
can pass an order under Rule 6 and make the attachment absolute. Here, the
defendant by filing his counter affidavit has attempted to show cause as to
why he should not be called upon to furnish security. That has been gone
into by the court below and by an elaborate order rejected his contention.
Thereby the opportunity to show cause having been availed by the
defendant, the court having considered the same and having passed the
FAO/185/2005. 4
order, virtually it is an order under Order 38 Rule 6 of CPC and therefore
we are of the view that this is an appealable order.
6. Coming to the merits of the contention, it has to be found
that the Apex Court in Union of India v. Smt. Hira Devi was considering a
case where the question arose was (i) whether a receiver can be appointed
for taking custody of the provident fund amount? and (ii) whether the
arrears of salary is attachable? After referring to the provisions contained in
the Provident Fund Act, 1925, it was found that provident fund is a
compulsory deposit and it does not cease to be so merely because it was not
paid on the due date and it is still lying in the account. While considering
the question as to whether arrears of salary is attachable, the court held that
the above conclusion does not however apply. Thus the Apex Court held
that execution cannot be sought against the provident found money by
appointment of a receiver. However, with regard to arrears of salary, it was
held 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 S.60, CPC Clause (1), but
there is no such exemption as regards arrears of salary.”
FAO/185/2005. 5
This answers the contention raised by the appellant. That decision was
rendered as early as in 1952 and has stood the test of time. The legislature
has not chosen to amend Section 60 Clause 1(i) of CPC. Further being a
decision of the Apex Court, we are bound by the said decision under Article
141 of the constitution of India. Though learned counsel appearing for the
appellant placed reliance on the decision of this court in Nalluswamy’s
case, we have perused the said decision and found that the decision of the
Apex Court has never been brought to the notice of the court. However, in
the light of the decision of the Apex Court, it has to be held that the decision
in Nalluswamy’s case is per incuriam.
Following the decision of the Apex Court, we find that the
order passed by the court below does not suffer from any illegality.
Accordingly, we find no merit in this appeal. It is dismissed. No order as to
costs.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.