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1988 DIGILAW 281 (MAD)

S. K. Sabapathy Mudaliar v. Dhandapani

1988-07-26

RATNAM

body1988
ORDER Ratnam, J. 1. The petitioner is the decree-holder in O.S.No. 316 of 1985, District Munsifs Court, Cuddalore. With a view realise the amounts due under the decree, the petitioner filed E.P.No. 787 of 1986 in O.S.No. 316 of 1985 under Order 21, Rule 48, C.P.C. praying for the attachment of a sum of Rs. 265 from out of the monthly salary of Rs. 1,200 of the first respondent herein, who is admittedly a Government servant. In his counter, the first respondent contended that after deductions, a sum of Rs. 295 alone is received by him and as that amount would be insufficient even to maintain his family, a sum of Rs. 50 from out of the salary may be attached. The executing Court found that the first respondent received Rs. 553 towards salary out of which two-thirds could be attached and a sum of Rs. 50 alone could be attached by means of a pro-order. It is the correctness of this that is questioned by the decree-holder in this Civil Revision Petition. 2. From the pay certificate issued by the authorities of the school in which the first respondent is working, it is seen that his pay is Rs. 805. Besides, the first respondent is also in receipt of Dearness Allowance of Rs. 121, Additional Dearness Allowance of Rs. 74 and House Rent Allowance of Rs. 55. From out of the aforesaid amounts, recoveries amounting to Rs. 502 under the heads Provident Fund, T.P.F. loan recovery, Festival Advance recovery, E.P.C. Provident Fund, Family Benefit Fund, Society loan recovery, Cycle loan recovery and State Bank recovery are also shown in the pay certificate, leaving a balance of Rs. 553 only. The question is, how much from out of the salary of the first respondent, the petitioner can seek to attach by a pro-order. Under Sub-section (1) of Section 60, C.P.C, the salary of a judgment-debtor can be attached subject, of course, to the other provisions in that regard. Clause(i) to the Proviso to Sub-section (1) of Section 60, C.P.C. provides that salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance shall not be liable for attachment of sale. Clause(i) to the Proviso to Sub-section (1) of Section 60, C.P.C. provides that salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance shall not be liable for attachment of sale. Clause (1) to the Proviso to Sub-section (1) of Section 60, C.P.C, exempts from attachment or sale any allowance forming part of the emoluments of any servant of the Government or of any servant of a railway company or local authority which the appropriate Government may by notification in the official Gazette declare to be exempt from attachment. Explanation I to Sub-section (1) of Section 60, C.P.C. declares that the moneys payable in relation to the matters mentioned in Clauses (i) and (1) referred to above are exempt from attachment or sale, whether before or after they are actually payable, and in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable. Explanation II sets out the meaning of the expression "salary" occurring in Clause (i) as 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 on leave. It is in the light of the aforesaid provisions that the attachable quantum of salary of the first respondent has to be determined. 3. Though in the pay certificate of the first respondent deductions amounting to Rs. 502 towards the items enumerated already have been shown in arriving at the salary for purposes of effecting an attachment under Section 60, C.P.C. out of the total monthly emoluments of Rs. 1,055 only allowances which are declared exempt from attachment by the notification under the provisions of Clause (1) can be deducted and not others. In other words, having regard to Explanation II where the expression "salary" for purposes of Clause (i) to the Proviso to Sub-section (1) of Section 60, C.P.C. has been stated to mean the total monthly emoluments excluding allowances declared exempt from attachment under the provisions of Clause (1) to the Proviso to Sub-section (1) of Section 60, C.P.C, the deductible items could only be such allowances exempt from attachment and not others. It follows that the deduction of Rs. It follows that the deduction of Rs. 502 from out of the total emoluments received by the first respondent is not in order. 4. Whether the first respondent is entitled to the exclusion of allowances declared exempt from attachment forming part of his salary may now be considered. Out of the total monthly emoluments of the first respondent of Rs. 1,055 as could be seen from his pay certificate, Dearness Allowance, Additional Dearness Allowance and House Rent Allowance, and House Rent Allowance account for Rs. 250. By G.O.Ms. No. 892, Home, dated 21.3.1944 (published in the Fort St. George, Gazette dated 4.4.1944 in Part I at page 261), the following among other allowances, payable to any person in the service of the Government of Madras, were declared to be exempt from attachment by order of Court, namely, (v) All house-rent allowances: (vi) All allowances granted to provide relief against the increase in the cost of living caused by war conditions. This notification had been issued in exercise of the powers under Clause (1) to the Proviso to Sub-section (1) of Section 60, C.P.C. By G.O.Ms. No. 1855, Home, dated 10.5.1949, an amendment to item (vi) in G.O.Ms. No. 892, Home, dated 21.3.1944 referred to earlier was made by substituting the following: (vi) All allowance granted to provide relief against the increased cost of living. for "All allowances granted to provide relief against the increase in the cost of living caused by war conditions". There is no dispute before this Court that the Dearness Allowances, Additional Dearness Allowances and the House Rent Allowance are all granted with a view to provide relief to the Government servant at least in part against the increased cost of living. As a result of G.O.Ms.No. 892, Home dated 21.3.1944, as amended by G.O.Ms.No. 1855, Home dated 10.5.1949, the position is that the Dearness Allowances, Additional Dearness Allowance and the House Rent Allowances being in the nature of allowances granted to give relief to the Government servant against the increased or high cost of living, would be exempt from attachment. It follows that from out the total monthly emoluments of Rs. 1,055 of the first respondent, a sum of Rs. 250 being allowances declared exempt from attachment under Clause (1) to the Proviso to Sub-section (1) of Section 6, C.P.C. has to be excluded in order to ascertain the salary of the first respondent. It follows that from out the total monthly emoluments of Rs. 1,055 of the first respondent, a sum of Rs. 250 being allowances declared exempt from attachment under Clause (1) to the Proviso to Sub-section (1) of Section 6, C.P.C. has to be excluded in order to ascertain the salary of the first respondent. Deducting a sum of Rs. 250 being the allowances exempt from attachment from out of the total monthly emoluments of Rs. 1,055 as per the notifications referred to earlier, the salary of the first respondent for purposes of Clause (i) to the Proviso to Sub-section (1) of Section 60, C.P.C. would be Rs. 805. According to Clause (i) to the Proviso to Sub-section (1) of Section 60, C.P.C. the first four hundred rupees and two-thirds of the remainder of the salary is not liable for attachment. Applying this to the salary of the first respondent, out of Rs. 805, Rs. 400 cannot be attached and that leaves a balance of Rs. 405. Even from out of this remainder, two-thirds cannot be attached. In other words, one-third, of Rs. 405 alone could be attached and that works out to Rs. 135. The executing Court was, therefore, in error in holding that the amount of Rs. 50 alone out of the salary of the first respondent can be attached by a pro-order in execution of the decree by the petitioner. Consequently, the Civil Revision Petition is allowed and the order of the Court below is set aside and a sum of Rs. 135 per mensem is directed to be attached from out of the salary of the first respondent instead of Rs. 50 as ordered by the Court below. There will be, however, no order as to costs.