Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 854 (AP)

L. Rajendra Naidu v. A. K. Dass

2012-09-13

C.V.NAGARJUNA REDDY

body2012
Judgment : The petitioner filed the above mentioned suit for recovery of money from the respondent. He has filed I.A.No.109/2012 under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short "the Code”), for attachment of the retirement benefits of the respondent before Judgment. The respondent resisted the said application by placing reliance on proviso (g) to Section 60(1) of the Code and the Judgment in RadheyShyam Gupta Vs. Punjab National Bank and another ( AIR 2009 S.C. 930 ). The lower Court accepted the plea of the respondent and dismissed the application on the ground that the retirement benefits having been exempted under the provisions of Section 60(1) of the Code, cannot be attached. At the hearing, the learned Counsel representing Sri A.K. Jayaprakash Rao, learned counsel for the petitioner, submitted that in Union of India Vs. Jyothi Chit Fund and Finance ( AIR 1976 S.C. 1163 ), the Supreme Court held that once the retirement benefits reach the hands of the judgment-debtor, they no longer retain that character and they become his personal money. A perusal of the order of the lower Court shows that the respondent has placed reliance on the Judgment in RadheyShyam Gupta (1-supra) wherein the Supreme Court has reviewed the case law and held at paras 24 and 25 as under: “Having considered the submissions made on behalf of the respective parties, we are inclined to accept Mr. Mehta's submission that the order impugned in the revision petition before the High Court did not attract the bar of the proviso to sub-section (1) of Section 115 of the Code as it sought to finally decide the manner in which the decree passed in Suit No. 66 of 1992 by the learned Additional and Sessions Judge, Bayana, Rajasthan, was to be satisfied. However, we are also of the view that having regard to proviso (g) to Section 60(1) of the Code, the High court committed a jurisdictional error in directing that a portion of the decretal amount be satisfied from the fixed deposit receipts of the appellant held by the Bank. The High Court also erred in placing the onus on the appellant to produce the Matador in question for being auctioned for recovery of the decretal dues. The High Court also erred in placing the onus on the appellant to produce the Matador in question for being auctioned for recovery of the decretal dues. In other words, the High Court erred in altering the decree of the trial Court in its revisional jurisdiction, particularly when the pension and gratuity of the appellant, which had been converted into Fixed Deposits, could not be attached under the provisions of the Code of Civil Procedure. The decision in the Jyoti We also agree with Ms. Shobha that the High Court could not have gone behind the decree in the execution proceedings and the alteration in the manner of recovery of the decretal amount was erroneous and cannot be sustained. We also agree with Ms. Shobha that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code. Except for the decision in the Jyoti Chit Fund and Finance case (supra), where a contrary view was taken, the consistent view taken thereafter support the contention that merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retiral benefits paid to the appellant.” (Emphasis added) Even though there are seemingly conflicting views of the Supreme Court in the above referred Judgments, the lower Court has rightly chosen to follow the later Judgment holding the field. Moreover, in RadheyShyam Gupta (1-supra), the Supreme Court has referred to the Judgment in JyothiChit Fund and Finance (2-supra) and opined that the view taken in the said Judgment was not accepted in the subsequent Judgments. Therefore, I do not find any jurisdictional error in the order of the lower Court in dismissing the application filed by the petitioner. The Civil Revision Petition is accordingly dismissed. As a sequel, interim order dated 4-4-2012 is vacated and CRPMP No.2211/2012 is disposed of as infructuous.