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1994 DIGILAW 17 (KER)

Sasidharan v. K. C. T. S. S. Sangam

1994-01-14

L.MANOHARAN

body1994
Judgment :- Second judgment debtor in O.S.97 of 1988 of the Additional Sub Court, North Paravur is the revision petitioner. Decree holder/first respondent filed E.A. 254 of 1991 in which he sought attachment of the salary of the revision petitioner. By the impugned order. the lower court ordered attachment of Rs. 500/-per month from the salary of the second judgment debtor and Rs. 400/- per month from the salary of the 3rd judgment debtor. As noticed, the 2nd judgment debtor/revision petitioner challenges the said order of attachment of his salary. 2. According to the learned counsel for the revision petitioner, there is no attachable portion in the salary of the revision petitioner. He produced salary certificate of the revision petitioner. The same is as follows: The total salary of the revision petitioner is Rs. 2787/-., According to the revision petitioner, D.A., C.C.A., H.R.A. and deductions towards G.P.F., FBS and LIC are to be excluded from the salary for deciding the attachable portion. 3. The proviso to S.60(1) C.P.C. enumerates the properties that are not liable for attachment. As per clause (1) allowances forming part of the emoluments notified by the government in the official gazette to be exempt from attachment is not attachable. It is not disputed that the Government has notified that D.A., CCA. and H.R.A. are exempt from attachment. Therefore, the said amount must be excluded in deciding the attachable portion of the salary. The dispute centres on the deductions. 4. Learned counsel for the revision petitioner would contend that the deductions towards GPF, FBS and LIC are also to be excluded in considering the attachable portion of the salary of the judgment debtor. The decree holder would maintain that the same cannot be excluded from attachment. It is contended by the learned counsel for the revision petitioner that as per clause (k) of the proviso to S.60(1) CPC deductions to be made towards Provident Fund has to be excluded. The bare reading of the said clause itself would show that the amount in deposit towards Provident Fund is not attachable. Once the deduction has gone in Provident Fund amount, that amount so collected cannot be attached, but clause (k) of the proviso docs not state that deductions to be made are exempt from attachment. This mailer came up for consideration in the decision in KousalyaDevi v. Praveen Bankers (1979 KLT 932). Once the deduction has gone in Provident Fund amount, that amount so collected cannot be attached, but clause (k) of the proviso docs not state that deductions to be made are exempt from attachment. This mailer came up for consideration in the decision in KousalyaDevi v. Praveen Bankers (1979 KLT 932). In that this court held: "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". The decision in Slier Behudoor v, Pasiipalliy Upadhyaya (1972 KLT 974) was referred to in the said decision. This decision was followed in George v. St. George Chilly Fund (1980 KLT 558). Therefore, the claim that the subscription towards Provident Fund must be excluded cannot be accepted. 5.. The exemption next claimed is with respect to the amount deducted towards F.B.S. The claim is based on clause (gg) of the proviso to S.60(1) CPC. The said clause reads: "(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employees of the Government of Kerala". The other exemption claimed is with respect to deductions made towards LIC. Reliance was made on clause (kb) of the proviso to S.60(1) CPC. The same reads: "(kb) all moneys payable under a policy of insurance on the life of the judgment debtor". As regards deduction towards LJC this court in the decision in Peetliambaran v, Sanku (1986 KLT 9) held that the same cannot be exempted in considering the attachable portion of the salary of the judgment debtor. The decision in Federal Bank Ltd. v. Indiradevi Kunjamma (AIR 1986 Bombay 101) relied on by the petitioner cannot support his contentions. It is not held therein that deduction towards LJC policy is exempted from attachment. The principle in the decision in Kousalya Devi's case (1979 KLT 932) is applicable to the said item also. What is exempted under clause (kb) of the proviso to S.60(1) CPC is the amount payable under a policy of insurance. Evidently the amount which is collected by deduction is not liable to be attached; but not the deductions to be made towards the policy. What is exempted under clause (kb) of the proviso to S.60(1) CPC is the amount payable under a policy of insurance. Evidently the amount which is collected by deduction is not liable to be attached; but not the deductions to be made towards the policy. As regards deductions to be made towards FBS also, the same principle applies. It is not the deduction that is exempted from attachment, but the amount which is collected by deduction and held to the credit of the beneficiaries is made not attachable. Yet the learned counsel for the revision petitioner relied on Art.89 of the Kerala Financial Code to contend subscription towards provident Fund has to be excluded from considering the attachable portion of the salary of the government servant. It is maintained by the learned counsel that in the light of the above, deduction towards Provident Fund too has to be excluded. By the very nature of the provisions in the Kerala Financial Code the same cannot over ride the provisions in the Civil Procedure Code which is a Central Act. Explanation II to S.60(1) of the CPC defines 'salary' for the purpose of clause (i) and (ia). Clause (i) states that the first four hundred rupees and two thirds of the remainder other than a decree for maintenance is exempted from attachment. When the attachable portion of the salary of the revision petitioner is calculated after excluding the D.A., C.C.A. and H.R.A. it can be seen that the same is Rs. 416/- per month. Therefore instead of Rs. 500/- per month directed to be attached from the salary of the revision petitioner, only Rs. 416/- per month can be attached from his salary. To that extent the revision succeeds. The revision is allowed in part as indicated above.