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2006 DIGILAW 3599 (PNJ)

Rachhpal Singh v. Balwant Kaur

2006-09-19

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - The petitioner by way of present revision has challenged the order 13.6.2005 passed by the learned Civil Judge (Jr. Divn.), Faridkot, vide which 2/3rd pension of the petitioner in execution of a decree has been attached by relying upon the judgment of this Court in the case of Ram Kanvar v. M/s. Ram Ricchhpal Banarsi Dass, 2002(2) Civil Court Cases 719. 2. The brief facts of the case are that the petitioner and the respondent are husband and wife. The respondent-wife filed a suit for maintenance against the petitioner-husband. The said suit was dismissed by the learned trial Court and the appeal filed by the respondent-wife was allowed by the first Appellate Court and the Regular Second Appeal filed against the said order was admitted and 50% amount of the decree has been ordered to be stayed. 3. In order to execute the decree, the respondent-wife filed an execution application for recovery of Rs. 36,000/- as maintenance and during the pendency of the said execution application, she filed an application for attachment of the pension of the petitioner or to send him to civil imprisonment. 4. The petitioner filed objections to the said application which were dismissed by the learned executing Court by placing reliance on the judgment of this Court in Ram Kanvars case (supra), wherein this Court was pleased to hold as under :- "The judgment-debtor-petitioner has miserably failed to show as to how any of his stipends and gratuities payable to pensioners of the Government has been ordered to be attached. There is neither any irregularity nor any illegality in the impugned order passed by the Executing Court. Therefore, the revision petition is wholly mis-conceived and is, thus, liable to be dismissed." 5. Mr. Surinder Garg, learned counsel appearing for the petitioner, contended that the said judgment of this Court cannot be said to be laying down the correct law as this Court while passing the said order had not taken note of the provisions of the Pensions Act, 1871 (hereinafter referred to as the Act). He refers to Section 11 of the Act, which reads as under :- "11. Exemption of pension from attachment. He refers to Section 11 of the Act, which reads as under :- "11. Exemption of pension from attachment. - No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for, any demand against the pension, or in satisfaction of a decree or order of any such Court. This section applied also to pensions granted or continued after the separation of Burma from India, by the Government of Burma." 6. The case of the learned counsel for the petitioner is that in view of the provisions of the Act, the Honble Supreme Court in the case of Union of India and another v. Wing Commander R.R. Hingormani (Retd.), AIR 1987 SC 808, has been pleased to lay down as under:- "9. In the premises, it is difficult to sustain the judgment of the High Court and it has to be reversed. Nonetheless, the writ petition must still succeed for another reason. It is somewhat strange that the High Court should have failed to apply its mind to the most crucial question involved, namely, that the Government was not competent to recover the amount of Rs. 20,482.78 alleged to be due and payable towards damages on account of unauthorised use and occupation of the flat from the commuted pension payable to the respondent which was clearly against the terms of Section 11 of the Pensions Act, 1871 which reads as follows" "Exemption of pension from attachment :- No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, or any, demand against the pensioner, or in satisfaction of a decree or order of any such Court." According to its plain terms, Section 11 protects from attachment, seizure, or sequestration pension or money due or to become due on account of any such pension. The words "money due or to become due on account of pension" by necessary implication mean money that has not yet been paid on account of pension or has not been received by the pensioner and therefore wide enough to include commuted pension. The controversy whether on commutation of pension the commuted pension becomes a capital sum or still retains the character of pension so long as it remains unpaid in the hands of the Government, is not a new one till it was settled by the judgment of this Court in Union of India v. Jyoti Chit Fund and Finance, 1976(3) SCR 763 : AIR 1976 SC 1163. We may briefly touch upon the earlier decisions on the question. In an English case, in Crowe v. Price, 1889(58) LJ QB 215 it was held that money paid to a retired officer of His Majestys force for the commutation of his pension does not retain its character as pension so as to prevent it from being taken in execution. On p. 217 of the Report, Coleridge, C.J. said : "It is clear to me that commutation money stands on an entirely different ground from pension money, and that if an officer commuted his pension for a capital sum paid down, the rules which apply to pension money and make any assignment of it void, do not apply to this sum." Following the dictum of Coleridge, C.J., Besley, C.J. and King, J. in Municipal Council, Salem v. B. Gururajah Rao, ILR 58 Mad. 469 : AIR 1935 mad 249 held that when pension or portion thereof is commuted, it ceases to be pension and becomes a capital sum. The question in that case was whether the commuted portion of the pension of a retired Subordinate Judge was income for purposes of assessment of professional tax under Section 354 of the Madras District Municipalities Act, 1920. The learned Judges held that where pension is commuted there is no longer any periodical payment; the pensioner receives once and for all a lump sum in lieu of the periodical payments. The pension is changed into something else and becomes a capital sum. The learned Judges held that where pension is commuted there is no longer any periodical payment; the pensioner receives once and for all a lump sum in lieu of the periodical payments. The pension is changed into something else and becomes a capital sum. On that view they held that the sum received by the retired Subordinate Judge in lieu of portion of his pension when it was commuted was no longer pension and, therefore, not liable to pay a professional tax under Section 354 of the Madras District Municipalities Act. That is to say, the commuted portion of the pension was not income for purposes of assessment of professional tax in a municipality. The question arose in a different form in C. Gopalachariar v. Deep Chand Sowcar, AIR 1941 Mad 207 and it was whether the commuted portion of the pension was not attachable in execution of a decree obtained by certain creditors in view of Section 11 of the Pensions Act. Pandurang Row, J. interpreting Section 11 of the Act was of the opinion that not only the pension but any portion of it which is commuted came within the provisions of the section. He particularly referred to the words "money due or to become due on account of pension" appearing in Section 11 of the Act which, according to him, would necessarily include the commuted portion of the pension. He observed that the phrase "on account of" is a phrase used in ordinary parlance and is certainly not a term of art which has acquired a definite or precise meaning in law. According to its ordinary connotation the phrase "on account of" means "by reason of" and he therefore queried : "Now can it be said that the commuted portion of the pension is not money due on account of the pension ? Though the pension has been commuted, still can it be said that money due by reason of such commutation or because of such commutation, is not money due on account or because of such commutation, is not money due on account of pension ?" He referred to Section 10 of the Act which provides for the mode of commutation and is part of Chapter III which is headed "Mode of Payment" and observed : "In other words, the commutation of pension is regarded as a mode of payment of pension. If so, can it be reasonably urged that payment of the commutation amount is not payment on account of the pension, though not of the pension itself, because after commutation it ceases to be pension ? I see no good reason why it should be deemed to be otherwise. No doubt money is due immediately under the commutation order, but the commutation order itself is on account of a pension which was commuted or a portion of the pension which was commuted. The intention behind the provisions of Section 11, Pensions Act, is applicable to the commuted portion as well as to the uncommuted portion of the pension and the language of Section 11 does not appear to exclude from its protection the money that is due under a commutation order commuting a part of the pension." 10. In Hassomal Sangumal v. Diaromal Laloomal, AIR 1942 Sind 19, Davis, C.J. speaking for a Division Bench referred to Gopalachariars case and pointed out that it does not lay down that once a pension has been commuted and the money paid over to the pensioner, the exemption from attachment still continues. The learned Chief Justice went on to say that the words "money due or to become due" used in Section 11 must by necessary implication mean the money that has not been paid to the pensioner." The contention of the learned counsel for the petitioner, therefore was that in view of the aforesaid judgment of the Honble Supreme Court, the order passed by the executing Court cannot be sustained. 7. Mr. Suveer Sheokand, learned counsel appearing for the respondent, vehemently contended that though it is not possible to attach the pension in view of the provisions of the Act, however, once the pension goes to the hand of the judgment-debtor-petitioner, then it loses the character of the pension and, therefore it can be attached. He placed reliance on the judgment of the Honble Supreme Court in Union of India v. Jyoti Chit Fund and Finance and others, AIR 1976 SC 1163 and referred to paras 11 and 12 of the judgment which read as under :- "11. We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee. We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee. The reality of the protection is reduced to illusory formality if we accept the interpretation sought. We take a contrary view which means that attachment is possible and lawful only after such amounts are received by the employee. If doubts may possibly be entertained on this question, the decision in Radha Kissen, 1969(3) SCR 29 : AIR 1969 SC 762 erases them. Indeed, our case is a fortiori one, on the facts. A bare reading of Radha Kissen makes the proposition fool-proof that so long as the amounts are Provident Fund dues then, till they are actually paid to the government servant who is entitled to it on retirement or otherwise, the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in Court to attachment. We follow that ruling and overrule the contention. 12. It is possible to take a broad view that cases where public policy is involved and the Court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken. Any public authority interested in the matter and not, behaving partially as an officious busy-body may bring to the notice of the Court the illegality of the steps it proposes to take. When the courts jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment-debtor in the instant case, appearing to defend himself." 8. I have considered the arguments raised by the learned counsel for the parties and find force in the contentions raised by the learned counsel for the petitioner. In the case of Jyoti Chit Funds case (supra), it has nowhere been laid down that once the pension is paid to an employee, then the same can be subject to attachment as was sought to be contended by the learned counsel for the respondent. As a matter of fact, the Honble Supreme Court had rejected this contention in specific terms. 9. As a matter of fact, the Honble Supreme Court had rejected this contention in specific terms. 9. In view of what has been stated above, the reliance by the trial Court on the judgment of this Court in Ram Kanvars case (supra) was totally misconceived as it was nowhere held by this Court that 2/3rd of the pension of an employee can be attached in execution of the decree. The said judgment on the facts of the case cannot be said to be laying down by law as interpreted by the executing Court. 10. Accordingly, the revision petition is allowed and the impugned order attaching 2/3rd pension of the petitioner is hereby set aside. However, it is made clear that it will be open to the respondent-wife to have recourse to other remedies available to her under law for execution of the decree passed against the husband-petitioner including the application for detention of the petitioner in civil prison. Petition allowed.