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2011 DIGILAW 949 (AP)

Nanduri Satyanarayana Raju v. Golla Subba Rao

2011-11-04

C.V.NAGARJUNA REDDY

body2011
Judgment : 1. Order dated 06-06-2011 in E.A No. 37 of 2011 in E.P No. 90 of 2008 in O.S No. 175 of 2006 on the file of the learned Junior Civil Judge at Kodad is questioned in this civil revision petition. 2. The petitioner is the decree holder who obtained decree against respondent No.1 for recovery of certain amounts. Respondent No.1 is the employee of Bharat Sanchar Nigal Limited (hereinafter referred to as ‘BSNL’) working under the administrative control of the General Manager, Telecom District, Vijaywada, Krishna District. Respondent No.2 is the salary disbursing officer of respondent No.1. The petitioner filed E.P No. 90 of 2008 for execution of the decree obtained by him. In the said E.P., the petitioner filed E.A No. 37 of 2011 under Order XXI Rule 48 (3) read with Section 151 of the Code of Civil Procedure (for short, ‘CPC’) for recovery of the entire E.P amount through respondent No.2. The said application has been dismissed by the Court below by a reasoning which appears to be strange. The Court below in the first phase held that salary is not a debt and the Executing Court has no power to direct to attach the salary of the judgment debtor and recover the same through respondent No.2 – garnishee. The Court below went on further to hold that in view of explanations 1 and 2 to Order XXI Rule 48 (3) CPC, the decree holder is at liberty to proceed against the appropriate government and not against respondent No.2 for recovery of the EP amount. In the opinion of this Court, both these reasons are wholly unsustainable.As regards the first mentioned reasoning of the Court below, it has completely overlooked the provisions of Section 60 and Rule 48 of Order XXI of CPC. Under Clause (i) of Section 60 CPC, the 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 etc., belonging to the judgment debtor are liable for attachment. Sub-clause (i) of proviso to Section 60 CPC exempts from attachment, salary to the extent of Rs.1,000/- and two-thirds of the remainder in execution of a decree other than the decree for maintenance. Sub-clause (i) of proviso to Section 60 CPC exempts from attachment, salary to the extent of Rs.1,000/- and two-thirds of the remainder in execution of a decree other than the decree for maintenance. This provision is subject to the proviso incorporated in the said sub-clause.Rule 48 of Order XXI CPC deals with attachment of salary or allowances of servants of the Government or Railway Company or local authority. Clause (1) of Rule 48 enables attachment of salary or allowances of a servant of the government or a servant of a railway company or of a local authority or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, and of a Government company as defined under Section 617 of the Companies Act, 1956, subject to the provisions of Section 60 CPC. Sub-clause (a) of Clause (1) of Rule 48 envisages that where such salary or allowances are to be disbursed within the local limits to which CPC for the time being extends, officer or other person whose duty is to disburse the same shall withhold and remit to the Court the amount due under the order or the monthly instalments, as the case may be. The Court below has completely ignored these provisions while holding that salary is not a debt and, therefore, the Court has no power to direct its attachment. 3. It is not in dispute that respondent No.2 is the disbursing officer situated within the local limits to which CPC applies and, therefore, he was impleaded as respondent No.2 for withholding the salary of respondent No.1. Respondent No.2 is the officer of BSNL which is an incorporated company belonging to the Central Government. Therefore, Clause (1) of Rule 48 of Order XXI CPC is squarely attracted and respondent No.2 being disbursing officer falls under sub-clause (a) of Clause (1) of Rule 48.The Court below has completely failed to notice the distinction between a government company and appropriate government and rejected the relief claimed by the petitioner obviously on the ground that such a relief can be claimed only against appropriate government and not against respondent No.2. This approach in the opinion of this Court is wholly unsustainable and betrays complete non-application of mind. 4. For the above mentioned reasons, the order under revision is set aside. The civil revision petition is allowed. This approach in the opinion of this Court is wholly unsustainable and betrays complete non-application of mind. 4. For the above mentioned reasons, the order under revision is set aside. The civil revision petition is allowed. The Court below is directed to reconsider E.A No. 37 of 2011 in the light of the provisions of Order XXI Rule 48 read with Section 60 of CPC and pass an appropriate order after hearing the parties, within a period of two months from the date of receipt of a copy of this order. 5. As a sequel to disposal of the civil revision petition as allowed, CRPMP No. 5460 of 2011, filed by the petitioner for interim relief, is also disposed of.