Judgment : 1. The civil revision petition is filed by the decree-holder/plaintiff in O.S. No. 247 of 2004 before the Principal District Munsif Court, Sankarankovil. The suit was filed for recovery of money due from the respondent. In terms of the decree dated 23.7.2004, E.P. No. 21 of 2005 was filed for attachment of salary and the same was dismissed. 2. Subsequently the decree holder/revision petitioner filed E.P. No. 96 of 2005 under Order 21 Rule 37 and 38 seeking arrest and detention of the respondent/judgment-debtor in the civil prison for not satisfying the decree amount. In support of the E.P. No. 96 of 2005, an affidavit was filed by the revision petitioner stating that the respondent is having sufficient means but is evading, payment of decree amount deliberately, to defeat the claim of the revision petitioner. A counter affidavit was filed by the respondent to the effect that he is living in poverty. He has however stated that he is ready to pay the decretal amount. The revision petitioner was examined as P.W.I and no one has been examined on behalf of the respondent/Judgment-debtor. The revision petitioner marked Exhibit P-1-Salary Certificate of the respondent. After considering the plea of the revision, petitioner, the Court below however dismissed the said E.P. No. 96 of 2005 holding in paragraphs 10, 11, 12 and 13 as follows: "10. Exhibit P-1 is the., Salary Certificate of the respondent pertaining to the month of December 2004. As per this salary certificate, it is clear that the respondent is getting a net pay of Rs. 3250/-per month. It is pertinent to note that in the E.P filed for attachment of the salary of the respondent, pro-order was sent and the said pro order was re-turned since the respondent is placed under suspension. As per the affidavit of the petitioner, it is clear that the respondent is placed under suspension, hence Exhibit PI will be of no use to the petitioner, since during the period of suspension, the respondent will be getting subsistence allowance alone. No document with regard to the subsistence allowance produced by the petitioner. Hence the petitioner has failed to prove the income of the respondent (i.e.) the means. 11. Another aspect is that whether the respondent has got sufficient means to pay the amount at the time of passing the decree. No document with regard to the subsistence allowance produced by the petitioner. Hence the petitioner has failed to prove the income of the respondent (i.e.) the means. 11. Another aspect is that whether the respondent has got sufficient means to pay the amount at the time of passing the decree. As Exhibit P-1 it is seen that the respondent was getting a sum of Rs. 3250/- towards net salary with this meagre amount he has to maintain himself and his family. So it is clear that at the time of passing decree also, the respondent had no sufficient means. More-over, it is held in numerous cases that mere non-payment of the decretal amount does not amount to refusal to pay or neglect to pay 12. Since the respondent is under suspension, he will be getting half of the amount stated in Exhibit P-1 towards subsistence allowance. Subsistence allowance are exempted from attachment under Section 60(e) C.P.C. Hence it should be left out of account when calculating means as per the explanation to Section 57. 13. In short, the petitioner has failed to prove the means and the willful neglect of the respondent. Hence arrest of the respondent cannot be ordered. In the result, the petition is dismissed. No costs.” 3. Aggrieved by the order of the Court below, this revision petition has been filed. Notice was served on the respondent on 3.4.2007 and subsequently telegram was sent intimating the date of hearing. A telegram dated 29.1.2008 was sent stating the date of hearing as 31.1.2008. The intimation as above was filed before this Court by way of a proof affidavit. The respondent failed to appear before this Court in spite of sufficient notice. 4. Learned counsel for the revision petitioner challenged the order of the Court below by submitting the following contentions: (a) The Execution Petition No. 96 of 2005 filed under Order 21 Rules 37 and 38 of Civil Procedure Code is for arrest and detention of the respondent/judgment-debtor for non-satisfying the decree amount. 4. Learned counsel for the revision petitioner challenged the order of the Court below by submitting the following contentions: (a) The Execution Petition No. 96 of 2005 filed under Order 21 Rules 37 and 38 of Civil Procedure Code is for arrest and detention of the respondent/judgment-debtor for non-satisfying the decree amount. But the Court below erroneously dismissed the Execution Petition on the ground that subsistence allowance is exempted from attachment under Section 60(1)(1) of the Civil Procedure Code and consequently, the said amount should be left out of account when calculating the means in terms of the Explanation to clause (b) of Proviso to Section 51 of C.P.C. According to the revision petitioner, Section 60(1)(1) C.P.C. will be applicable only when the attachment of salary is sought for at the hands of the employer. (b) Counsel for the revision petitioner con-tended that even assuming that the respondent is receiving subsistence allowance on account of the suspension during the relevant time, the interpretation of the Court below that the subsistence allowance cannot be attached in terms of Section 60(1)(1) of C.P.C. and therefore, it should be left out of account while calculating the means as per Explanation to clause (b) of proviso to Section 51 of C.P.C. is erroneous. According to the learned counsel for the revision petitioner. so long as the amount remained with the employer, it will have the projection under Section 60(1)(1) of C.P.C. How-ever, when the amount is paid over to the employee, such protection is not available. The Court below came to erroneous conclusion that the respondent is a man of no means merely because he is under suspension and getting subsistence allowance. The counsel for the revision petitioner contended that the Court below misconstrued Section 60(1)(I) of C.P.C. and held that the respondent has no means. 5. Section 51 and Section 60 of C.P.C on which reliance is placed is set out hereunder. Section 51 proviso clause (b) and explanation reads as follows: "51. The counsel for the revision petitioner contended that the Court below misconstrued Section 60(1)(I) of C.P.C. and held that the respondent has no means. 5. Section 51 and Section 60 of C.P.C on which reliance is placed is set out hereunder. Section 51 proviso clause (b) and explanation reads as follows: "51. Powers of Court to enforce execution— Subject to such conditions and limitations as may be prescribed, the Court, may, on the application of the decree holder, order execution of the decree (a) xxx (b) by attachment and sale or by sale without attachment of any property; (c) x x x (d) x x x (e)xxx Provided that, where the decree is for the payment or money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied - (a) xxx (b) that the judgment-debtor has, or has since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) x x x Explanation: In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree." 6. Section 60(1) of C.P.C., which is also relevant to the present case reads as follows: “60. Property liable to attachment and sale in execution of decree:-(I) The following property is liable to attachment and sale in execution of a decree, namely lands. Section 60(1) of C.P.C., which is also relevant to the present case reads as follows: “60. Property liable to attachment and sale in execution of decree:-(I) The following property is liable to attachment and sale in execution of a decree, namely lands. houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government Securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise forhis own benefit, whether the same beheld in the name of the judgment-debtor or by another person in a trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely: (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman; (b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce may have been declared to be free from liability under the provisions of the next following Section: (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to (an agriculturist or a labourer or a domestic servant) and occupied by him. (d) books of account; (e) a mereright to sue for damages; (f) any right of personal service; (g) stipends and gratuities allowed to pensioners of the Government (or of a local authority or of any other employer), or pay-able out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions; (h) the wages of labourers and domestic servants, whether payable in money or in kind; (i) Salary to the extent of the first ((one thou-sand rupees) and two-thirds of the re-minder) in execution of any decree other than a decree for maintenance; Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree; (ia) one-third of the salary in execution of any decree for maintenance; (j) the pay and allowances of persons to whom the Air Force Act, 1950(45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies; (k) all compulsory deposits and other sums in or derived from ally fund to which the Provident Funds Act, 1925 (19 of 1925), for the time being applies insofar as they are declared by the said Act not to be liable to attachment; (ka) all deposits and other sums in or de-rived from any fund to which the Public Provident Funds Act, 1968 (23 of 1968), for the time being applies, insofar as they are declared by the said Act as not to be liable to attachment; (kb) all moneys payable under a policy of insurance on the life of the judgment-debtor; (kc) the interest of lessee of a residential building to which the provisions of law for the time being ill force relating to control of rents and accommodation apply; (l) 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 any subsistence grant or allowance made to any such servant while under suspension. Explanation I: The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) 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 of after it is actually payable." Referring to Section 60(1)(1) and Section 51 of the C.P.C. the learned counsel for the petitioner stated that the respondent had some means, but, however, refused and neglected to pay the same and therefore, the application for arrest is in order. He submitted that Section 51 of C.P.C. will not be attracted to the present case, as the respondent has some means. Further, the provision of Section 60(1)(1) of C.P.C. will apply till such time the emoluments are at the hands of the employer. He, further, laid emphasis on the Explanation-I to Section 60(1) of C.P.C. which clearly states that the exemption from attachment will apply whether before or after it is actually payable, meaning thereby that the amount will not be attached at the hands of the employer. 7. In support of his plea, the revision petitioner placed reliance in AIR (31) 1944 Madras 263 interpreting the provisions of Section 51 of C.P.C. to counter the views taken by the Court below. In the above case the judgment-debtor challenged the order of the Court below which held that the judgment-debtor is having means and rejected the plea made on the basis of Section 11 of Pension Act read with Section 51 of C.P.C. The High Court accepted the view of the Court below and held as follows: "It was next argued by the learned advocate for the appellant that the Court in this case had not to deal with the question whether the amount of the pension after it has been received by the appellant could be actually seized by way of attachment or not, because that is not the relief which the decree-holder sought in the lower Court and that the only question is whether under clause (b) to the proviso to Section 51 and the explanation, the amount which is payable month by month ought not to be left out of account in considering the question whether the judgment-debtor has the means to pay the amount of the decree or a substantial portion of it. The answer to this argument is really that which has been given to his first argument. If after the amount of the pension has been paid over to the appellant, the amount ceases to be exempt from attachment, I fail to see how it can be left out of account for the purposes of Section 51 proviso, clause (b) and the explanation. I consider therefore that the lower Courts were right in holding that the appellant is not a person who has no means of paying the decree amount or a sufficient portion thereof." 8. The learned counsel also placed reliance upon a decision in (1999) 2 MLJ 572 at paragraph 8, which is relevant and it reads as follows: "8. The decision of the Supreme Court re-lied on by the learned counsel for the respondent in Union of India v. Jothi Chit Fund and Finance and Others, AIR 1976 SC 1163 does not say anything different. In paragraph 11 of the said judgment it is stated as follows: "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 refunded to illusory formality if we accept the 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 Kissens case, (1979)3 SCR 28 AIR 1969 SC 762 erases them. In-deed, our case is a fortiori one, on the facts. A bare reading of Radhao 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 also authority for the benign view that the Government is a trustee for those sum and has an interest in maintaining the objection." 9. He also placed reliance upon the decision in AIR 1961 Bombay 142 Para 8, which deals with a similar issue as in the case: "8. He also placed reliance upon the decision in AIR 1961 Bombay 142 Para 8, which deals with a similar issue as in the case: "8. We are fortified in our opinion by a case which arose under the analogous provisions relating to pensions, In Gnanasir Omani v. Nedungadi Bank Ltd., AIR 1944 Madras 263 a similar objection was raised that an amount of pension received by a pensioner was not liable to attachment by virtue of the provisions of Section 11 of the pensions Act. The provisions for purposes of the case before us were similar to those contained in clause (i) of the proviso to Section 60(1). SOMAYYA, J., held that after the amount of the pension had been paid over to the pensioner the amount ceases to be exempt from attachment under Section 11 of the Pensions Act. In that case also, the question arose in connection with Section 51, Proviso (b) and SOMAYYA, J. observed: “If after the amount of the pension has been paid over to the appellant, the amount ceases to be exempt from attachment. I fail to see how it can be left out of account for the purposes of S.51, Proviso, clause (b) and the explanation." In our opinion, in the present case also, the amount of the salary which the appellant had already received can be taken into account in judging his means because it was no longer salary after receipt by him and therefore no longer subject to the bar against attachment or sale." It was, therefore, pleaded that the respondent in the present case is not protected by the Section 60 (1)(1) or Section 51, Proviso, Clause (b) and explanation. Further, the plea is not for attachment, but for arrest. In any event, the respondent/judgment-debtor is receiving some amount and therefore, cannot be said to be without means. 10. Section 60 provides the particulars that shall not be liable to such attachment or sale. Under clause (I) any subsistence grant or allowance made to any such servant while under suspension would be exempted. However explanation (1) inserted by Act 14 of 1976 states that the money payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (I) and (o) are exempted from attachment or sale whether before or after they are actually payable. However explanation (1) inserted by Act 14 of 1976 states that the money payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (I) and (o) are exempted from attachment or sale whether before or after they are actually payable. In other words, the amounts payable, namely, subsistence grant or allowance payable to the person under suspension till it is in the hands of the employer is exempt. The word "used" is actually payable and not paid. There-fore, there is a clear indication that the above amounts in the hands of the employer is exempted from attachment. Therefore, the view of the Court below that the bar of Section 60(1)(1) of C.P.C. will apply to this case is erroneous. I n any event, the application is not for attachment of the salary or subsistence grant, but for arrest. 11. Insofar as the question relating to means is concerned, it has been clearly held in the various decisions referred to above that the amount after it reaches the hands of the employee it does not get the protection under Section 51 proviso clause (b) and explanation. 12. In this case, it is not in dispute that the respondents salary is Rs. 3250/- per month in terms of Exhibit P-1 marked by the revision petitioner and it is not in dispute that he is under suspension at the relevant point of time and therefore, he is entitled to a portion of the salary as per law. So long as the said amount is in the hands of the employer, then, Section 60 will be attracted. But once the amount is paid over to the respondent, he cannot plead that he is a man of no means. Even under Section 51 clause (b) Proviso all that the Courts has to see is whether the judgment-debtor since the date of decree has the means to pay the amount as per the decree or some substantial part thereof, neglects or refused to pay the amount. In this case, it is not in dispute that during the relevant time respondent is receiving some amount as subsistence grant or allowance. Therefore, respondent has to satisfy the decree or part thereof and he failed to do. Further it is recorded by the Courts below that the respondent has agreed to discharge the liability. In this case, it is not in dispute that during the relevant time respondent is receiving some amount as subsistence grant or allowance. Therefore, respondent has to satisfy the decree or part thereof and he failed to do. Further it is recorded by the Courts below that the respondent has agreed to discharge the liability. The respondent having accepted to pay, has Marled and neglected to do so knowingly and deliberately. Therefore, on a wrong interpretation of Section 60(1)(1) as well as Section 51 proviso clause (b) and the explanation, the Court below has come to the conclusion that respondent is a man of no means and dismissed the petition for arrest. 13. Therefore, as rightly contended the amount paid to the respondent either in the form of salary or subsistence grant or allowance, does not get the protection under Section 60 read with the Explanation to clause (b) of proviso to Section 51 of C.P.C. if the same is paid over him. The respondent, therefore, cannot be said to be a man without means. Having accepted to discharge the debt in terms of the decree, the respondent has not even made an attempt to satisfy a portion of the decree. It is therefore, clear that the intention of the respondent is to defeat the claim of the decree-holder and has failed to make the payment and there appears to be no just or reasonable cause for not doing so. 14. Since there is a clear indication that an amount is being paid to the respondent in terms of Exhibit P- I, it cannot be said that the respondent is without means. The Courts below has dismissed the application on wrong ixtecvtetat wofIlseTovisioi as stated above; 15. In the result, the civil revision petition is allowed. The order dated 24.2.2005 passed in E.P. No. 96 of 2005 by the Principal District Munsif, Sankarankovil, is set aside and the E.P. is remitted back to the Principal District Munsif, Sankarankovil for fresh disposal on merits. No costs.