Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 661 (KER)

Pappachan v. Oriental Kuries Ltd.

2017-04-04

SATHISH NINAN, V.CHITAMBARESH

body2017
ORDER : 1. What is the nature and character of the amounts realised by attachment of the salary of the judgment debtor in execution of a decree for money beyond the permissible period of twenty four months? The learned single Judge has referred the Civil Revision Petitions filed by the judgment debtor to the Division Bench for an authoritative pronouncement on this vexed question. 2. The decree for money in O.S. No. 258/1989 on the file of the court of the Subordinate Judge of Thrissur was put into execution in E.P. No. 601/1993 for attachment of the salary of the judgment debtors. The attachment of the salary of 2017 (2) Kerala Law Times 306 the second judgment debtor ceased after 24 months even though the attachment of the salary of the first judgment debtor continued beyond. It transpires that a sum of Rs. 15,920/- is lying in court deposit towards the amount collected for the period exceeding 24 months for which rival claims have now been made. The decree holder has filed E.P. No. 343/2004 to recover the said amount by attachment whereas the first judgment debtor has filed C.A. No. 67/2001 for refund of the amount collected in excess. 3. The execution court though has dismissed E.P. No. 343/2004 held that the decree holder can withdraw the amount on the ground that the amount deposited in excess has now become part of the decree debt. The execution court has on the same reasoning held that the first judgment debtor is not entitled to get refund of the amount deposited in excess and dismissed C.A. No. 67/2001. The separate orders passed in E.P. No. 343/2004 and C.A. No. 67/2001 are challenged in these Civil Revision Petitions under Section 115 of the Code of Civil Procedure, 1908. 4. We heard Mr. G. Sreekumar Chelur, Advocate on behalf of the first judgment debtor and Mr. M.S. Narayanan, Advocate on behalf of the decree holder as well as Mr. P.G. Jayasankar, Advocate as amicus curiae. 5. Section 60 (1)(i) of the Code of Civil Procedure, 1908 (the CPC for short) provides for the execution of a decree for money by attachment of the salary of the judgment debtor and is extracted hereunder:- 60. M.S. Narayanan, Advocate on behalf of the decree holder as well as Mr. P.G. Jayasankar, Advocate as amicus curiae. 5. Section 60 (1)(i) of the Code of Civil Procedure, 1908 (the CPC for short) provides for the execution of a decree for money by attachment of the salary of the judgment debtor and is extracted hereunder:- 60. Property liable to attachment and sale in execution of decree:- (1) 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 for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely:- (a) xxx xxx (b) xxx xxx (c) xxx xxx (d) xxx xxx (e) xxx xxx (f) xxx xxx (g) xxx xxx (h) xxx xxx (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-(ia) one-third of the salary in execution of any decree for maintenance. Thus salary to the extent of the first one thousand rupees and two-thirds of the remainder shall be exempt from attachment in execution of a decree for money except that in the case of a decree for maintenance. Thus salary to the extent of the first one thousand rupees and two-thirds of the remainder shall be exempt from attachment in execution of a decree for money except that in the case of a decree for maintenance. Similarly the attachable portion of the salary shall be exempt from attachment in execution of one and the same decree for money if the attachment has continued for a total period of 24 months. There is a statutory embargo for the execution court to recover the attachable portion of the salary of the judgment debtor for a period beyond 24 months in execution of the same decree. 6. The decree holder cannot be permitted to overcome the statutory embargo and contend that the amount having already come to court even if by attachment beyond 24 months has become part of decree debt. The amount does not loose the nature and character of 'salary' merely for the reason that it has come to the execution court even though by a means prohibited by law. The source of money is the wages earned for the work extracted from the judgment debtor by his employer and the same does not loose its tinge or colour as salary by reason of a deposit in court. 7. A single Judge of this Court in Jayaraja Menon vs. Rajakrishnan, 1997 (1) KLT 813 had held that gratuity and pension will cease to be exempt from attachment once the amounts come to the hands of the plaintiff. It was observed as follows:- Even if the amounts while in the custody of the Government could be treated as not attachable in view of the relevant provisions in Section 60 of the Act, in the light of the decision of the Supreme Court in Union of India vs. J.C. Funds and Finance, AIR 1976 SC 1163 and the decision of the Division Bench in Thomas George vs. Soudamini Manakka, 1996 (2) KLT 891 once the amounts have come into the hands of the plaintiff, they will cease to be exempt from attachment. In this case, therefore, the amounts having come into the hands of the plaintiff, he cannot seek the exclusion of those amounts from the computation while considering whether he has ceased to be an indigent person. In this case, therefore, the amounts having come into the hands of the plaintiff, he cannot seek the exclusion of those amounts from the computation while considering whether he has ceased to be an indigent person. The above view has been frowned upon by the Supreme Court after referring to the same J.C. Funds and Finance's case (supra) in Radhey Shyam Gupta vs. Punjab National Bank, 2009 (1) KLT SN 40 (C. No. 44) SC : (2009) 1 SCC 376 . It was held therein as follows:- 35. 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 Jyoti Chit Fund and Finance case, where a contrary view was taken, the consistent view taken thereafter supports 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 (no) such retiral benefits paid to the appellant. Thus pension and gratuity would continue to be so without losing its nature and character even after the disbursing authority has lost control over the same which principle will apply to the salary also. The amount of wages payable for the services rendered would continue to be salary whether or not the same is still with the employer or has been deposited in court in execution of a decree for money. 8. We are conscious of the fact that arrears of salary accumulated over a period however stands on a different footing (See Union of India vs. Hira Devi, AIR 1952 SC 227 and Sheeba Thomas vs. Rosamma Thomas, 2009 (3) KLT 260. Such a question does not arise in this case as what was attached is only recurring wages termed as salary which is subject to the exemption as regards the attachable portion and period as per Section 60(1) (i) of the CPC. The sum of Rs. 15,920/- recovered in excess by attachment of the salary for the period beyond 24 months should legitimately be returned to the first judgment debtor only. The sum of Rs. 15,920/- recovered in excess by attachment of the salary for the period beyond 24 months should legitimately be returned to the first judgment debtor only. The decree holder has no right over that part of the amount exempted from attachment of salary under Section 60(1)(i) of the CPC and it does not form part of the decree debt therefore. The execution court erred in holding that the decree holder is at liberty to withdraw the amount collected in excess and dismissing the cheque application put in by the first judgment debtor. 9. There is another angle at which the case can be viewed applying the maxim - actus curiae neminem gravabit - which means that - an act of court shall prejudice no man -founded on justice and good sense. The execution court would not have continued with the attachment of the salary beyond 24 months had it been apprised of the period for which the same was in force and implementation. This is precisely why this Court in Suseela vs. Inasu and Another, 2007 (4) KLT 692 insisted that the order of attachment of salary should specify that it would subsist for 24 months only. The first judgment debtor would not have suffered an impoverishment of Rs. 15,920/- had the attachment of salary been terminated at the end off 24 months. The law provides for restitution under such circumstances as has been reiterated in South Eastern Coalfields Ltd. vs. State of Madhya Pradesh, (2003) 8 SCC 648 . It was held therein as follows:- 28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the "act of the court" embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. The above excerpt has been quoted with approval in State of Gujarat vs. Essar Oil Limited, 2012 (1) KLT Suppl. 70 (SC) : (2012) 3 SCC 522 and there is no reason as to why the maxim actus curiae neminem gravabit shall not be made applicable here also. The first judgment debtor is liable to be restituted to the extent of Rs. 15,920/- recovered from him in excess and therefore the said amount in court deposit is to be refunded to him. 10. We answer the reference holding that the salary attached in execution of a decree for money during the period exceedmg 24 months does not lose its nature or character and enjoys statutory exemption. We also overrule Jayaraja Merton vs. Rajakrishnan, 1997 (1) KLT 813 to the extent it holds that gratuity and pension will cease to be exempt from attachment after disbursement by employer. The Registry shall post the Civil Revision Petitions before the single bench as per roster for disposal of the same in the light of the observations above in accordance with law. 11. Mr. P.G. Jayasankar, Advocate has added a feather to his cap by effectively discharging his duty as amicus curiae in this case. Reference answered accordingly.