{"id":229066,"date":"1952-05-21T00:00:00","date_gmt":"1952-05-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-union-of-india-vs-hira-devi-and-another-on-21-may-1952"},"modified":"2018-01-09T18:48:20","modified_gmt":"2018-01-09T13:18:20","slug":"the-union-of-india-vs-hira-devi-and-another-on-21-may-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-union-of-india-vs-hira-devi-and-another-on-21-may-1952","title":{"rendered":"The Union Of India vs Hira Devi And Another on 21 May, 1952"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Union Of India vs Hira Devi And Another on 21 May, 1952<\/div>\n
Equivalent citations: 1952 AIR 227, \t\t 1952 SCR 765<\/div>\n
Author: N C Aiyar<\/div>\n
Bench: Aiyar, N. Chandrasekhara<\/div>\n
           PETITIONER:\nTHE UNION OF INDIA\n\n\tVs.\n\nRESPONDENT:\nHIRA DEVI AND ANOTHER.\n\nDATE OF JUDGMENT:\n21\/05\/1952\n\nBENCH:\nAIYAR, N. CHANDRASEKHARA\nBENCH:\nAIYAR, N. CHANDRASEKHARA\nMAHAJAN, MEHR CHAND\nBOSE, VIVIAN\n\nCITATION:\n 1952 AIR  227\t\t  1952 SCR  765\n\n\nACT:\n    Civil  Procedure Code, 1908, s. 60 (k)--Provident  Funds\nAct  (XIX of 1925), ss. 2 (a), 3 (1)--Compulsory deposit  in\nProvident   Fund--Exemption from attachment--Appointment  of\nreceiver-Legality.\n\n\n\nHEADNOTE:\n  A receiver cannot be appointed in execution of a  decree\nin  respect of a compulsory deposit in a Provident Fund\t due\nto  the\t judgment debtor. Whatever doubts may  have  existed\nunder the earlier Act of 1897, the definition of \"compulsory\ndeposit\"  in  s. 2 (a) of the Provident Funds  Act  (XlX  of\n1925)  clearly includes deposits remaining to the credit  of\nthe subscriber or depositor after he has retired from  serv-\nice.\n    Arrears of salary and allowances stand upon a  different\nfooting\t and are not exempt from being proceeded against  in\nexecution.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION:  Civil Appeal No. 132  of
\n1951.\n<\/p>\n
    Appeal  by\tSpecial Leave from the Judgment\t and  Decree
\ndated  17th  May, 1950, of the High Court of  Judicature  at
\nCalcutta  (Harries  C.J. and Sinha J.) in Appeal No.  41  of
\n1950 arising out of the Order of
\n766<\/span>
\nBanerjee  J. dated 19th December, 1949, in Suit No.  132  of
\n1948.\n<\/p>\n
    M.C. Setalvad, Attorney-General for India (B. Sen,\twith
\nhim) for the appellant.\n<\/p>\n
    Naziruddin Ahmad (Nuruddin Ahmad, with him) or  respond-
\nent No. 1.\n<\/p>\n
    S.N. Mukherjee for respondent No.2
\n1952. May 21. The Judgment of the Court was delivered by
\n    CHANDRASEKHARA  AIYAR  J.–This  Court  granted  special
\nleave to appeal in this\t case on the Government agreeing  to
\npay the costs of the respondents in respect of the appeal in
\nany event.\n<\/p>\n
    The decree-holder was a lady named Hira Devi. The  judg-
\nment-debtor  was one Ram Grahit Singh, who retired  on\t31st
\nJanuary, “1’947, as a Head Clerk in the Dead Letter  Office,
\nCalcutta.   A money decree was obtained against him on\t30th
\nJuly, 1948.  On 1st February, 1949, a receiver was appointed
\nfor  collecting\t the moneys standing to the  credit  of\t the
\njudgment-debtor in a Provident Fund with the Postal authori-
\nties.\tThe  Union of India intervened with  an\t application
\ndated  20th  September, 1949, for setting  aside  the  order
\nappointing the receiver.\n<\/p>\n
    Mr.\t Justice Banerjee  dismissed the application of\t the
\nUnion  of India, holding that a receiver could be  appointed
\nfor collecting the Fund.  On appeal, Trevor Harries C.J. and
\nSinha J. upheld his view.\n<\/p>\n
  From\tthe facts stated in the petition filed by the  Union
\nof India before the High Court, it appears that a sum of Rs.
\n1,394-13-1 represents arrears of pay and allowances .due  to
\nthe judgment-debtor and a sum Of Rs. 1,563, is the compulso-
\nry deposit in his Provident Fund account.  Different consid-
\nerations  will\tapply to the two sums, though in  the  lower
\ncourt the parties seem to have proceeded on the footing that
\nthe entire sum was a “compulsory deposit” within the meaning
\nof the provident Funds Act, 1925.\n<\/p>\n
      The main question to be decided. is whether a receiver
\ncan  be appointed in execution in respect of provident\tFund
\nmoney due to the judgment-debtor.\n<\/p>\n
767<\/span><\/p>\n
    Compulsory deposit and other sums in or derived from any
\nfund  to which the Provident Funds Act XIX of  1925  applies
\nare  exempt from attachment and sale under section  60\t(k),
\nCivil Procedure Code.\n<\/p>\n
    “Compulsory\t deposit”  is thus defined in section 2\t (a)
\nof the Provident Funds Act XIX of 1925:–\n<\/p>\n
    Compulsory\tdeposit means a subscription to, or  deposit
\nin  a Provident Fund which under the rules of the  Fund,  is
\nnot,  until  the  happening of\tsome  specified\t contingency
\nrepayable  on demand otherwise than for the purpose  of\t the
\npayment\t of premia in respect of a policy of life  insurance
\n(or  the Payment Of subscriptions or premia in respect of  a
\nfamily pension fund), and includes any contribution and\t any
\ninterest  or increment which has accrued under the rules  of
\nthe  fund on any such subscription,  deposit,  contribution,
\nand  also  any\tsuch  subscription,  deposit,  contribution,
\ninterest  or increment remaining to the credit of  the\tsub-
\nscriber or depositor after the happening of any such contin-
\ngency.”\n<\/p>\n
    Such  a  deposit  cannot be assigned or charged  and  is
\nnot liable to any attachment.  Section 3 (1)of the said\t Act
\nprovides :–\n<\/p>\n
    3. (1)” A compulsory deposit in any Government or  Rail-
\nway Provident Fund shall not in any way be capable of  being
\nassigned  or charged and shall not be liable  to  attachment
\nunder any decree or order of any Civil, Revenue or  Criminal
\nCourt  in respect of any debt or liability incurred  by\t the
\nsubscriber  or depositor, and neither the Official  Assignee
\nnor  any receiver appointed under the Provincial  Insolvency
\nAct,  1920  shall be entitled to, or have any claim  on\t any
\nsuch compulsory deposit.”\n<\/p>\n
    It\tis obvious that the prohibition against the  assign-
\nment or the attachment of such compulsory deposits is  based
\non  grounds  of public policy.\tWhere  the  interdiction  is
\nabsolute,  to allow a judgment creditor to get at  the\tfund
\nindirectly  by means of the appointment of a receiver  would
\nbe  to circumvent the statute.\tThat such a  frustration  of
\nthe very object of
\n768<\/span>
\nthe legislation should not be permitted was laid down by the
\nCourt  of  Appeal as early as 1886 in the case of  Lucas  v.
\nHarris\t(1),  where the question arose with reference  to  a
\npension\t payable  to two officers of  Her  Majesty’s  Indian
\nArmy. Section 141 of the Army Act, 1881 provided:\n<\/p>\n
    “Every  assignment\tof, and every charge on,  and  every
\nagreement  to assign or charge any  ………  pension\tpay-
\nable  to any officer or soldier of Her Majesty’s forces,  or
\nany pension payable to any such officer ………  or to any
\nperson\tin respect of any military service, shall except  so
\nfar as the same is made in pursuance of a royal warrant\t for
\nthe benefit of the family of the person entitled thereto, or
\nas may be authorised by any Act lot the time being in force,
\nbe   void.\n<\/p>\n
In  that case, the appointment of a receiver to collect\t the
\npension was in question. Lindley, L.J., observed:-\n<\/p>\n
    In considering whether a receiver of a retired officer’s
\npension ought to be appointed, not only the language but the
\nobject\tof section 141 of the Army Act. 1881 must be  looked
\nto;  and the object of the section would, in my opinion,  be
\ndefeated, and not advanced, if a receiver were appointed.”\n<\/p>\n
    Lord  Justice Lopes reiterated the same thing  in  these
\nwords :-\n<\/p>\n
    “It is beyond dispute that the object of the legislature
\nwas  to secure for officers who had served their country,  a
\nprovision  which would keep them from want and would  enable
\nthem  to retain a respectable social position. i do not\t see
\nhow this object could be effected unless those pensions were
\nmade absolutely inalienable. preventing not only the  person
\nhimself\t assigning  his interest in the\t pension.  but\talso
\npreventing  the\t pension being seized or  attached  under  a
\ngarnishee order, or by an execution or other process of law.
\nUnless\tprotection is given to this extent the object  which
\nthe  legislature  had in view is frustrated, and  a  strange
\nanomaly would exist.  A person with a
\n(1) 18 (Q.B D. 127.\n<\/p>\n
769<\/span><\/p>\n
pension\t would not be able to utilise his pension to  pay  a
\ndebt  beforehand, but immediately his creditor had  obtained
\njudgment  might\t be deprived of his pension  by\t attachment,
\nequitable  execution,  or some other legal process.   It  is
\nimpossible  to suppose that the legislature could  have\t in-
\ntended such an anomaly.”\n<\/p>\n
    Section  51\t  of  the  Civil  Procedure Code   no  doubt
\nrecognises  five modes of execution of a decree and  one  of
\nthem is the appointment of a receiver. Instead of  executing
\nthe  decree by attachment and sale, the Court may appoint  a
\nreceiver but this can only be in a case where a receiver can
\nbe  appointed. The Provident Fund money is exempt  from\t at-
\ntachment and is inalienable.  Normally, no execution can lie
\nagainst such a sum.\n<\/p>\n
    The learned Judges in the Court below rested their\tview
\non  the\t authority of the decision of the Privy\t Council  in
\nRajindra Narain Singh v. Sundara Bibi(1).  This decision has
\ncaused\tall  the  difficulty and has created  a\t current  of
\nthought\t that  even though the property may  not  itself  be
\nliable\tto attachment, a receiver can be appointed  to\ttake
\npossession  of the same and to apply the income or  proceeds
\nin a particular manner including the payment of the debts of
\nthe judgment-debtor.  It is necessary. therefore, to examine
\nthe  facts  of the case carefully and find out\twhether\t the
\nproposition sought to be deduced from it can be justified as
\na principle of general application apart from the particular
\ncircumstances.\tThe original decision of the Allahabad\tHigh
\nCourt  from which the appeal was taken before  the  Judicial
\nCommittee  is  reported in Sundar Bibi\tv.  Raj\t Indranarain
\nSingh(2).  In a suit between two brothers, there was a\tcom-
\npromise to the effect that the Judgment-debtor shall possess
\nand  enjoy the immoveable properties mentioned in  the\tlist
\nand  estimated\tto yield a net profit of Rs.  8,000  a\tyear
\nwithout power of transfer during the lifetime of his  broth-
\ner, Lal Bahadur Singh, he undertaking to pay certain  public
\nexactions and other dues
\n(1)1925) 52 I.A. 262.\t\t    (2) (1921)43 All. 617
\n770<\/span>
\n    to\this brother, Lal Bahadur Singh, amounting in all  to
\nRs. 7,870-11-6, in four equal instalments per annum, each to
\nbe  paid  a month before the Government revenue\t falls\tdue.
\nThe  arrangement  was stated to be “in lieu of\this  mainte-
\nnance”.\t When the judgment debtor’s interest in the  proper-
\nties  was  sought  to be attached and sold,  he\t raised\t the
\nobjection that they  were exempt from attachment and sale by
\nreason of clause (n) of Section 60 of the Code which  speaks
\nof    “a right to future maintenance”.\tThe High Court\theld
\nthat  the  words employed in sub-clause (n)  contemplated  R
\nbare right of maintenance and nothing more–a right enforce-
\nable by law and payable in the future–and that inasmuch  as
\nin the case before them the properties had been assigned  to
\nthe  judgment-debtor in lieu of his maintenance, it was\t not
\nsuch  a\t right, which alone was exempt from  attachment\t and
\nsate.  They thought that it was a fit case for the  appoint-
\nment  of a receiver and remitted the execution\tpetition  to
\nthe  subordinate  judge for the appointment  of\t a  receiver
\nafter  determining  the allowance payable to  the  judgment-
\ndebtor for his maintenance.\n<\/p>\n
   With\t this  conclusion  of the  High Court the Judicial
\nCommittee  concurred. But they also expressed the view\tthat
\nthey did not agree with the High Court on the subject of the
\nactual legal position of the right of maintenance  conferred
\nupon the judgment-debtor. Taking the prayer of the  judgment
\ncreditor  to be that the right of maintenance  be  proceeded
\nagainst,  their\t Lordships observed that the  right  was  in
\npoint  of law not attachable and not saleable. If it was  an
\nassignment  of\tproperties for maintenance,  the  amount  of
\nwhich was not fixed, it was open to the judgment-creditor to
\nget  a\treceiver  appointed subject to\tthe  condition\tthat
\nwhatever  may  remain  after\t making\t provision  for\t the
\nmaintenance of the judgment-debtor should be made  available
\nfor the satisfaction of the decree debt. The right to  main-
\ntenance\t could\tnot be attached or sold.  In so far  as\t the
\ndecree-holder  sought to attach this right and\tdeprive\t the
\njudgment-debtor of, his maintenance, he was not entitled  to
\ndo
\n771<\/span>
\nso,  but  where\t his application for the  appointment  of  a
\nreceiver  was  more comprehensive and sought to get  at\t any
\nremaining income after satisfying the maintenance claim, the
\nappointment  of\t a receiver for the purpose  was  justified.
\nThe  decision  of the Privy Council does not appear  to\t lay
\ndown  anything\tbeyond this. In our opinion, it\t is  not  an
\nauthority for the general proposition that even though there
\nis a statutory prohibition against attachment and alienation
\nof  a particular species of property, it can be\t reached  by
\nanother\t mode of execution, viz., the appointment of  a\t re-
\nceiver.\t  On the other hand, it was pointed out in the\tcase
\nof  Nawab Bahadur of Murshidabad v. Karnani Industrial\tBank
\nLimited(1) that as the Nawab had a disposing power over\t the
\nrents and profits assigned to him for the maintenance of his
\ntitle  and  dignity without any power of alienation  of\t the
\nproperties,  no question of public policy arose and  that  a
\nreceiver  of  the rents and profits was\t rightly  appointed.
\nThis line of reasoning indicates clearly that in cases where
\nthere  is  no  disposing power and the\tstatute\t imposes  an
\nabsolute  bar  on  alienation or attachment  on\t grounds  of
\npublic policy, execution should not be levied.
\n    Understood\t as    mentioned   above,   Rajindra  Narain
\nSingh’s\t case creates no difficulty.  We shall now refer  to
\nthe  decisions that followed or distinguished the same.\t  In
\nThe Secretary of State for India in Council v. Bai Somi\t and
\nAnother(2),  the  maintenance of Rs. 96 per annum  was\tmade
\nunder a compromise decree a charge on the house which was to
\nbelong\tto the defendant.  ‘the court-fee due to  Government
\nwas  sought to be recovered by attachment of the house.\t The
\nright  to attach was negatived; the house could not  be\t at-
\ntached as it belonged to the defendant; and the\t plaintiff’s
\nright  to maintenance could not\t be attached  under  section
\n60, clause (1). In dealing with a prayer made by the Govern-
\nment  for  the\tfirst time in the High Court  for  an  order
\nappointing  a  receiver\t of  the  plaintiff’s\tmaintenance,
\nBeaumont C.J. and
\n(1) (1931) 58 I.A. 215.\t      (2) (1933) 57 Bom. 507.\n<\/p>\n
100<\/span>
\n772<\/span><\/p>\n
another learned Judge held that even this could not be done.
\nThe  Chief Justice said ,’If these exempted payments can  be
\nreached in execution by the appointment of a receiver by way
\nof  equitable  execution,  the protection  afforded  by\t the
\nsection\t is to a great extent lost.” They steered  clear  of
\nRajindra  Narain Singh’s case by stating that there  was  in
\nthe  judgment of the Board no  clear expression\t of  opinion
\nand  there was doubt whether the allowance then in  question
\nwas maintenance or not.\t The Madras High Court in The Secre-
\ntary  of  State for India in Council v.\t Sarvepalli  Venkata
\nLakshmamma(1)  has dealt with a question similar to the\t one
\nin  The Secretary of State for India in Council v. Bai\tSomi
\nand  Another(2)\t but  it merely referred to  the  ruling  in
\nRajindra Narain Singh’s case without dealing with the  facts
\nor  the reasoning.  It throws no light. The case in  Janaki-
\nnath v. Pramatha Nath (3)  was a decision by a single  Judge
\nand stands on the same footing as the Madras case. There  is
\nnothing else on this subject in the judgment than the  short
\nobservation, “the Provident Funds Act does not in my opinion
\nprohibit  the appointment of a receiver of the sum lying  to
\nthe credit of the deceased in the Provident Fund.”  Possibly
\nthe view was taken that on the death of the employee and  in
\nthe absence of any dependent or nominee becoming entitled to
\nthe  fund  under the rules, it became money payable  to\t the
\nheirs of the deceased and lost its original nature of  being
\na compulsory deposit.  The case of Dominion of India, repre-
\nsenting E. 1. Ry. Administration and Another v. Ashutosh Das
\nand  Others(4)\trefers no doubt to Rajindra  Narain  Singh’s
\ncase  but  does not discuss it in any detail.\tRoxburgh  J.
\nmerely states “surely it is an improper use of that  equita-
\nble remedy to employ it to avoid a very definite bar created
\nby  statute law to achieving the very object for  which\t the
\nreceiver  is appointed.” The decision in Ramprasad v.  Moti-
\nram(5) related to the attachment and sale in execution of a
\n  (1) (1926) 49 Mad; 567.\t   (4) (1950) 54 C.W.N. 254.
\n  (2) (1933) 57 Bom. 507.\t    (5) (1946) 25 Pat. 705.
\n  (3) (1940) 44 C.W.N. 266.\n<\/p>\n
773<\/span><\/p>\n
money  decree of the interest of a khoposhdar in a  khorposh
\ngrant which was heritable and transferable. It affords us no
\nassistance.\n<\/p>\n
    The learned counsel for the respondents relied on  three
\ndecisions of the Privy Council as lending him support.\t One
\nis Nawab Bahadur of Murshidabad’s case(1)  already  referred
\nto. Vibhudapriya Thirtha    Swamiar v.\tLakshmindra  Thirtha
\nSwamiar(2)  and\t Niladri Sahu v. Mahant Chaturbhuj  Das\t and
\nOthers(3)  are the other two eases and they relate to  maths
\nand alienations by way of mortgage of endowed properties  by
\nthe respective mahants for alleged necessity of the institu-
\ntions.\t They  bear  no analogy to the\tpresent\t ease.\t The
\nmahants\t had a beneficial interest in the  properties  after
\nbeing  provided\t with maintenance. A receiver could  be\t ap-
\npointed\t in respect of such beneficial interest so that\t the
\ndecrees obtained may be satisfied.\n<\/p>\n
    With  great respect to the learned Judges of  the  Court
\nbelow, we are of the opinion that execution cannot be sought
\nagainst the Provident Fund money by way of appointment of  a
\nreceiver.\n<\/p>\n
This\t conclusion does not, however, apply to the  arrears
\nof salary and allowance due to the judgment-debtor   as they
\nstand upon a different legal footing.Salary   is not attach-
\nable  to  the extent provided in  Section 60,\tclause\t(1),
\nCivil  Procedure  Code, but there is no\t such  exemption  as
\nregards\t arrears  of salary.  The  learned  Attorney-General
\nconceded  that this portion of the amount can  be  proceeded
\nagainst in execution.\n<\/p>\n
  The  Provident Fund amount was not paid to the  subscriber
\nafter  the  date of his retirement in January  1947.   This,
\nhowever, does not make it any the less a compulsory  deposit
\nwithin\tthe  meaning of the Act.  Whatever  doubt  may\thave
\nexisted\t under the earlier Act of 1897 the  decisions  cited
\nfor the respondent, Miller v. B.B. & C.I. Railway(4) and Raj
\n (1) (1931) 58 I.A. 215.\t    (3) (1926) 53 I.A. 253.
\n (2) (1927) 54 I.A. 228.\t(4) (1903) 5 Bom. L.R. 454.\n<\/p>\n
774<\/span><\/p>\n
Kumar Mukharjee v. W.G. Godfrey(1) are under that  Act,\t the
\nmeaning has now been made clear by the definition in section
\n2  of the present Act; any deposit “remaining to the  credit
\nof  the subscriber or depositor after the happening  of\t any
\nsuch  contingency”  is also a compulsory  deposit;  and\t the
\ncontingency may be retirement from service.
\n    In\tthe result, the appeal is allowed and the  order  of
\nthe  lower  court  dated 1st February,\t1949,  appointing  a
\nreceiver  is set aside as regards the Provident Fund  amount
\nof  Rs.\t 1,563 lying to the credit of  the  judgment-debtor.
\nUnder  the condition granting special leave, the  Government
\nwill pay the 1st respondent’s costs of this appeal.
\nAppeal allowed.\n<\/p>\n
  Agent for the appellant: P.A. Mehta.\n<\/p>\n
  Agent for the respondent No. 1: Naunit Lal.
\n  Agent for the respondent No. 2: P.K. Chatterjee.
\n(1) A,I.R. 1922 Cal. 196,
\n     775<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Union Of India vs Hira Devi And Another on 21 May, 1952 Equivalent citations: 1952 AIR 227, 1952 SCR 765 Author: N C Aiyar Bench: Aiyar, N. Chandrasekhara PETITIONER: THE UNION OF INDIA Vs. RESPONDENT: HIRA DEVI AND ANOTHER. DATE OF JUDGMENT: 21\/05\/1952 BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. 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