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1980 DIGILAW 138 (KER)

GEORGE v. KURISUMMOOTTIL ST. GEORGE CHITTY FUND

1980-06-25

GEORGE VADAKKEL

body1980
Judgment :- 1. The decree-holder sought execution of the money decree in his favour by attachment of the judgment-debtor's salary to the extent of Rs. 50/-. The same was allowed by the lower court and the judgment-debtor has come up in revision. 2. As per E. A. No 1048 of 1977 the decree-holder stated that the salary of the judgment-debtor is Rs. 552/-. It is not contended before me that the same is in any way incorrect. In fact, the judgment-debtor has along with this revision petition produced a certificate issued by the Electrical Section, Mannar and signed by the Assistant Engineer of that Section showing that his total salary is Rs. 555.96. The said certificate also shows that a deduction of Rs. 59/- is made as remittance to the General Provident Fund and a sum of Re. 1/- is paid to the Kerala State Electricity Board Employees' Welfare Fund. On that basis it is contended that the net total that the petitioner receives as salary is Rs. 495.96 The further submission is that of this the first Rs 400/- cannot be attached and of the remaining Rs. 95.96, 2/3 thereof cannot be attached. The argument as aforesaid proceeds on the basis of S.60(1)(i) of the Code of Civil Procedure, 1908. The order for attachment at the rate of Rs. 50/- from the petitioner's salary is therefore impugned. 3. The question that arises for consideration is as to whether the petitioner is entitled to have the sum of Rs. 60/- remitted to his General Provident Fund and the Employees' Welfare Fund excluded in reckoning his "salary" under S.60(1)(i) of the Code, as contended for by his learned counsel. 4. The learned counsel for the petitioner relies on Explanations II and III to S.60 of the Code to contend as aforesaid. He also relies on clause (k) of S.60(1) of the Code. 5. Explanation II aforesaid says that 'salary' means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or no leave. Explanation III aforesaid provides as to which Government is the proper Government in a given instance, the Central Government or the State Government, as the case may be, that can exercise the power to notify as envisaged by clause (1). Explanation III aforesaid provides as to which Government is the proper Government in a given instance, the Central Government or the State Government, as the case may be, that can exercise the power to notify as envisaged by clause (1). S.60 (1) (k) exempts from attachment all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act 1925 for the time being applies in so far as they are declared by the said Act as not to be liable to attachment. I do not think that any of the provisions read above is of any assistance to the petitioner to contend as stated in the preceding paragraph. 6. Explanations II and III are of no assistance to the petitioner in so far as there is no notification under clause (I) in the official gazette declaring remittances to the General Provident Fund' or to the KSEB. Employees' Welfare Fund to be exempt from attachment by the appropriate Government, namely, the State Government. Clause (k) of S.60 (1) of the Code also is of no assistance to the petitioner to claim that the sum of Rs. 60/-payable by him as monthly contribution to the General Provident Fund and the, Employees' Welfare Fund, is to be excluded in determining his salary. No doubt, that section provides that all compulsory deposits and other sums in any fund to which the Provident Funds Act, 1925 for the time being applies or such sums derived from any such fund to which the aforesaid Act applies would be exempt from attachment to the extent that Act declares that it is so. What the aforesaid clause provides is that an amount deposited and which forms part of the Provident Fund cannot be attached and not that the monthly contribution payable under the Provident Funds Act 1925 cannot be taken into account to reckon the salary as mentioned in S.60 (1) (i) of the Code. The argument of the learned counsel for the petitioner is that salary mentioned in S.60 (1) (i) of the Code has to be understood as exclusive of the amounts not-attachable under clause (k) of S.60 (1) of the Code. I do not think that the scheme of the Code in S.60 (1) is as submitted on behalf of the petitioner. 7. I do not think that the scheme of the Code in S.60 (1) is as submitted on behalf of the petitioner. 7. I am supported in the view taken in the preceding paragraph by a decision of this Court in Kousalya Devi v. Praveen Bankers (1979 KLT. 932). My learned brother Viswanatha Iyer, J. considering the question as aforesaid pointed out as follows: 'Another contention arised is that the amount of Rs. 60/- per month contributed towards Provident Fund should also be deducted from the salary in reckoning the amount attachable from the salary. First of all Explanation II to S.60 (1) defines what a salary is for the purpose of clause (i) and (ia). That explanation does not provide for excluding any other amount from the salary. Secondly clause (k) referred to above exempts only compulsory deposits in any fund to which the Provident Funds Act, 1925 or any other corresponding law applies. An agreement by the petitioner to contribute a specified sum or a request by her to deduct any specified sum from her salary towards Provident Fund will not by itself make that sum a compulsory deposit in any fund to which the Provident Fund Act applies. Only after the contribution goes into the fund exemption under clause (k) is available. My attention is drawn to the decision in Sher Behudoor v. Pasupathy Upadhyaya (1972 KLT. 974) where Bhaskaran, J. has stated that contributions of funds under the Employees' State Insurance Scheme and Employees' Provident Fund Act 1952 have to be deducted in reckoning the attachable portion of the salary of a judgment-debtor. The learned judge has held so on stating that though clause (k) referred to above does not specifically provide for such a deduction, taking in view the Social Welfare Legislation this has been deducted. This approach is beside the point when we consider the specific provisions in the CPC. which alone are relevant in considering the question of attachment of salary of Central Government servants as in this case. It follows that the contribution which the petitioner has agreed to make towards Provident Fund cannot be excluded in reckoning the attachable portion of the salary." 8. I am in full agreement with the view expressed as above. The learned counsel for the revision-petitioner also relies on the decision in Sher Behudoor v. Pasupathy (1972 KLT. It follows that the contribution which the petitioner has agreed to make towards Provident Fund cannot be excluded in reckoning the attachable portion of the salary." 8. I am in full agreement with the view expressed as above. The learned counsel for the revision-petitioner also relies on the decision in Sher Behudoor v. Pasupathy (1972 KLT. 974) which has been fully discussed by my learned brother Viswanatha Iyer, J. in the first mentioned decision. In view of what is stated above and with reference to the salary obtained by the petitioner, which is, as per the certificate produced herein with the revision petition, Rs. 555.96 there is no merit in this civil revision petition. Deducting the first 400 rupees the 1/3 of the remaining Rs. 155.90 is attachable. The sum of Rs. 50/- ordered to be attached by the order under revision is less than that 1/3. Dismissed. No costs.