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2010 DIGILAW 113 (PNJ)

Murjani v. Sube Singh

2010-01-07

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1. This revision is directed against the order dated 19.9.2006, passed by Civil Judge (Senior Division), Narnaul, whereby order dated 12.6.2004, has been modified to the extent that the amount of Rs. 40,000/- lying in the account of judgment debtor/petitioner bearing No. 5586 maintained by Mohindergarh Central Cooperative Bank Ltd. Branch, Namaul, shall remain attached and from the month of September, 2006, an amount of Rs. 1500/- shall be attached from the salary of the petitioner every month. 2. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs. 1,03,200/- against the present petitioner/defendant which was decreed on 11.2.2003 wherein it was ordered that "the plaintiff is also entitled for interest on the decretal amount at the rate of Rs. 2% per month from the date of filing the suit till the recovery of decretal amount". 3. The respondent/plaintiff filed an execution application forrecovery of Rs. 1,79,000/- which included decretal amount of Rs. 1,03,200/-, interest of Rs. 61,920/- from 13.1.2001 to 13.7.2003, Rs. 11,675/- as costs of the suit and Rs. 2,205/ as costs of execution besides claiming further interest and expenses. 4. In the said execution application, the respondent/plaintiff filed an application dated 12.6.2004 for attachment of account No. 5586 of the judgment debtor maintained by Mohindergarh Central Cooperative Bank Ltd. Branch, Narnaul, on which the trial Court passed the following order -- "The present execution is for recovery of amount of Rs. 1,79,000/-. Today, the decree holder has filed an application for attachment of the bank account of JD hearing No. 5586 with Mohindergarh Central Cooperative Bank Ltd. Mohindergarh. Heard on the application. The account No. 5586 which is in the name of Murjani son of Lona Ram with the Mohindergarh Central Co-operative Bank Ltd., Mohindergarh, Branch, Narnaul is attached till further order. The intimation in this context he sent to the Manager Mohindergarh Central Cooperative Bank Ltd., Mohindergarh. He is further asked to send the copy of the statement of account ofJD to the court. Come up for further proceedings on 28.8.2004". In terms of the aforesaid order, account of the petitioner/judgment debtor was attached. In the meantime, besides the aforesaid order of attachment of the bank account, arrest warrants were also issued by the executing Court against the judgment debtor/petitioner on 25.5.2005. Come up for further proceedings on 28.8.2004". In terms of the aforesaid order, account of the petitioner/judgment debtor was attached. In the meantime, besides the aforesaid order of attachment of the bank account, arrest warrants were also issued by the executing Court against the judgment debtor/petitioner on 25.5.2005. The petitioner filed application dated 22.7.2005 for removal of attachment of salary and also for withdrawal of the arrest warrant. It was inter alia alleged by the judgment debtor that he is an employee of the Central Cooperative Bank, Ltd, and as per rules of the bank, amount of his salary is deposited in the bank account which has been attached and family of the petitioner is facing starvation as he could not withdraw any amount since 12.6.2004. He also alleged that in view of the provisions of Section 60 (1) (i) of Code of Civil Procedure, 1908 (for short -CPC-), the executing Court cannot attach salary to the extent of first one thousand and two-third of the remainder in execution of any decree other than a decree for maintenance beyond a period of 24 months continuously. It was alleged that arrest warrant in execution of a money decree is the last resort. The said application was contested by the respondent/plaintiff by way of a reply dated 09.9.2006 in which it was admitted that the petitioner is getting salary from the bank account maintained in the aforesaid bank. The trial Court disposed of the said application vide order dated 19.9.2006, observing as under -- "From the perusal of the certificate placed on the file issued by the Municipal Committee, Narnaul, it is observed that the total amount deposited in the bank account of the judgment debtor bearing No. 5586 is Rs. 66,566/- till the month of August, 2006. It is also to be noted here that according to provisions of Section 60 C.P.C., the whole of the salary cannot be attached and hence the order dated 12.6.2004 by which amount of the JD was attached stands modified. It is also to be noted here that it is the duty of the Court to get satisfy the decretal amount and hence the amount of Rs. 40,000/- shall remain attached and would go in the share of the decree holder and the remaining amount of Rs. 26,566/- can be taken by the J.D. and henceforth from the month of September,2006, the amount of Rs. 40,000/- shall remain attached and would go in the share of the decree holder and the remaining amount of Rs. 26,566/- can be taken by the J.D. and henceforth from the month of September,2006, the amount of Rs. 15,00/- from the above head would be attached till further order and the remaining amount can be taken by the J.D. because the J.D. has placed on file a salary certificate in which his total salary has been mentioned as Rs. 5,847/-per month. The order dated 26.8.2004 stands modified accordingly." In this case, notice of motion was issued on 09.1.2007 and operation of the impugned order to the extent it pertains to further attachment of salary of the petitioner was stayed. Then this revision petition was admitted on 24.4.2008 with interim order to continue. 5. Mr. P.R. Yadav, learned counsel for the petitioner has vehemently argued that the impugned order contravenes the provisions of Section 60 (1) (i) of C.P.C. which provides that in case of attachment of salary, first one thousand and two-third of the remainder cannot be attached. He further submits that salary of the petitioner was Rs. 5,847/- per month as on 19.9.2006 and at the most, Rs. 1,651 /- could have been attached up to a period of 24 months only, after that attachment order would cease to operate. In this regard, he relied upon a decision of this Court in the case of Shamsher Singh v. Gandhi Singh and others 1984 P.L.R. 190. to contend that provisions of Section 60 (1) (i) of CPC are mandatory and provide that portion of salary which is liable to attachment cannot be more than 24 months for the payment of same decree and attachment order ceases after the expiry of said period. It is also contended that the order of attachment (Annexure P-4) was passed on 12.6.2004 and since salary of the petitioner remained under attachment till passing of the order dated 19.9.2006 by the learned Court below which provides that out of Rs. 66,566/- which is certified by the employer to have been deposited in the account of the petitioner as his salary, Rs. 40,000/- has already been ordered to remain attached would satisfy the provisions of Section 60 (1) (i) of CPC as the amount of 24 months and order of attachment of Rs. 66,566/- which is certified by the employer to have been deposited in the account of the petitioner as his salary, Rs. 40,000/- has already been ordered to remain attached would satisfy the provisions of Section 60 (1) (i) of CPC as the amount of 24 months and order of attachment of Rs. 1500/- from the month of September,2006 from the salary of the petitioner is patently illegal and without jurisdiction. 6. In reply to the aforesaid submissions, learned counsel for the respondent/plaintiff has argued that decree dated 11.2.2003 has become final as the petitioner/judgment debtor has not challenged the decree in appeal. He further submits that there is no error in the impugned order as the amount lying in the account can always be attached besides a portion of the salary. He, however, could not refer to any provision of law much less a precedent to controvert the arguments raised by learned counsel for the petitioner/judgment debtor to the effect that the executing Court has no jurisdiction to attach the salary of the judgment debtor for more than a period of 24 months in execution of the same decree without exempting first one thousand rupees and two-thirds of the remainder. 7. I have heard learned counsel for the parties and have perused the record with their assistance. Before adverting to the rival contentions, relevant provisions of law is required to be noticed. Section 60 (1) (i) of the CPC reads as under -- [(i) salary to the extent of [the first one thousand rupees and two-thirds of the remainder ]] [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;]. According to the aforesaid provision, in case of attachment of salary, first one thousand rupees and two-thirds of remainder has to be left out in execution of any decree other than a decree for maintenance and rest of the amount can be attached. The said attachment shall continue for a period of 24 months either intermittently or continuously for the purposes of same decree. 8 In the present case, admittedly, the decree is not for maintenance, therefore, the provisions of Section 60(1 )(i) of CPC would apply with its full rigour in favour of the decree holder but salary of the judgment debtor would be exempted towards first one thousand rupees and two-thirds of remainder. He can withdraw rest of the salary in accordance with proviso to the said provision. Attachment in the course of execution of same decree shall remain in operation only for a period of 24 months either intermittently or continuously. 9. In the present case, the learned Court below has noticed that a certificate has been placed on record my Municipal Council, Narnaul, who is the employer of the judgment debtor/petitioner that salary amount of Rs. 66,566/- in the salary account of the judgment debtor maintained in the Mohindergarh Central Cooperative Bank Limited Branch, Narnaul has been deposited up to the month of August, 2006. Therefore, amount of Rs. 1,615/- which can be recovered from the salary of Rs. 5,847/-, which was to be paid to the judgment debtor as on 19.9.2006 for 24 months comes to Rs. 38784/-, which has already been attached in the impugned order. 10. There is nothing on record to suggest that there is some other account in the said bank of the judgment debtor/petitioner except for his salary. Thus, in my view, since salary for the period of 24 months in terms of Section 60(1) (i) of CPC has already been attached to the extent of Rs. 40,000/-, therefore, trial Court could not have ordered for attachment of salary of the petitioner/judgment debtor to the extent of Rs. 1,500/- w.e.f. September, 2006 indefinitely without specifying any period. Thus, the impugned order dated 19.9.2006 is set aside to the extent that the amount of Rs. 1,500/- as ordered in the impugned order shall not be attached. However, the amount of Rs. 40,000/- as already ordered to be attached shall remain attached and shall be paid to the decree holder. 1,500/- w.e.f. September, 2006 indefinitely without specifying any period. Thus, the impugned order dated 19.9.2006 is set aside to the extent that the amount of Rs. 1,500/- as ordered in the impugned order shall not be attached. However, the amount of Rs. 40,000/- as already ordered to be attached shall remain attached and shall be paid to the decree holder. Insofar the execution of decree for the recovery of remaining amount is concerned, the respondent/plaintiff is free to proceed with the execution application to recover rest of the amount in accordance with law. With these observations, the present petition is disposed of.