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2019 DIGILAW 207 (KER)

Sreeja V v. P G Sharma

2019-02-26

ANNIE JOHN, K.HARILAL

body2019
ORDER : Annie John, J. 1. This reference has been made, by the Single Judge, for determining the legality and correctness of, the decision in Suseela v. Inasu, 2007 (3) KHC 980 , in view of the proviso to S.60(1)(i) of the CPC. 2. The question, referred to us, centers around the interpretation over the proviso to S.60(1)(i) of the CPC. According to Suseela's case (supra) it contains an interdiction, from attaching the salary of a person, in execution of a decree, for more than twenty - four months; but, according to the learned Single Judge, it seems warrant a second look, with reference to the two limbs of the proviso to S.60(1)(i) of the CPC. 3. In Suseela's case (supra), it is held thus: "Proviso to S.60(1)(i) stipulates that where 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 month, be finally exempt from attachment in execution of that decree. So, it is mandatory not to attach the salary of a person in execution of one decree for more than twenty - four months. If salary is attached, thereafter it is against law and it has to be instantaneously stopped. In these type of cases, the Court while issuing the order of attachment of salary should make it specifically clear that the attachment shall be only for a period of twenty - four months and not thereafter." 4. The view, which was expressed in the ruling cited above, is that it is mandatory not to attach the salary of a person, in execution of one decree, for more than twenty - four months. It has been held that the proviso to S.60(1) (i) of the CPC stipulates that where attachment has been made in execution of one and the same decree over a portion of the salary of the judgment debtor and if such attachment has continued for a total period of 24 months, the salary of that judgment debtor is permanently exempted from attachment in execution of that decree. 5. 5. But, in disagreement with the aforesaid proposition, the Single Judge has observed that the ruling held in Suseela's case (supra) places a different interpretation, which appears to be misconceived, over the proviso to S.60(1) (i) of the CPC, holding that it is mandatory not to attach the salary of a person in execution of one decree, for more than twenty - four months. Accordingly, the matter is placed before us to consider and interpret the wordings used in the proviso to S.60(1)(i) of the CPC. 6. The facts, from which the reference arises out, are that the attachment of the salary of the petitioner/3rd judgment debtor has been effected continuously for twenty - four months, and an amount of Rs.1000/- was attached from her salary. Now, again the respondent/decree holder has approached the Court below with an application to attach the salary of the petitioner/3rd judgment debtor, which was strenuously opposed by the petitioner. 7. Heard Sri. C. S. Manilal, the learned counsel appearing for the petitioner and Sri. A. R. Dileep, the learned counsel appearing for the respondents. 8. The argument on the side of the petitioner is that once attachment of salary of the petitioner/3rd judgment debtor has been effected continuously for twenty - four months, the Court is prevented from attaching her salary, even after a lapse of twelve months, since it is related to the one and the same decree. The learned counsel for the petitioner submits that if attachment has continued for a total period of 24 months, the salary of that judgment debtor is completely and permanently exempted from attachment in execution of that decree. 9. The learned counsel for the respondent strenuously opposed the interpretation made by the learned counsel appearing for the petitioner and contended that both the limbs of the proviso to S.60(1)(i) has to be read and interpreted together and such portion of salary as is liable to attachment and has been under attachment for a total period of 24 months alone is permanently exempted from attachment. The upward variation, if any, in the salary can be attached again. 10. The upward variation, if any, in the salary can be attached again. 10. Now, the question to be answered is whether, the wordings "where such attachment" can be interpreted as such portion exempt from attachment, after a total period of twenty - four months and such an attachment alone is permanently exempted from attachment, if it is related to one and the same decree. 11. S.60(1)(i) of the CPC reads thus: 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: xxxx xxxx xxxx [(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;]]. 12. On a bare reading of S.60(1)(i) CPC, it is well discernible that "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, is exempted from attachment. 12. On a bare reading of S.60(1)(i) CPC, it is well discernible that "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, is exempted from attachment. The proviso says that "where any part of such portion of the salary as is liable to attachment and has been under attachment, whether continuously or intermittently, for a total period of twenty - four months, such portion shall be exempted 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 exempted from attachment in execution of that decree. 13 . Earlier, the wordings used as "such portion shall exempt", and later on it was written as "such portion of the attachment". Both clauses in the proviso have to be read conjointly and not separately, giving due significance to "such portion of the salary" which was under attachment, and if it is so examined, it can be seen that such portion under attachment, that alone, if the attachment had continued for twenty - four months, is finally exempted from attachment in execution of that decree. The interpretation of the words used in the proviso to S.60(1)(i), 'such portion of salary', would intend that only, the part of the salary which was attached by the Court, that alone is exempted permanently for future attachment. In this context, the words used as 'where such attachment' would indicate the meaning as "such portion of the salary". 14. In this connection, the learned counsel for the respondent has cited a ruling held in Little Flower Kuries & Enterprises Ltd., Fort Kochi v.P. Sandeep and Others, 2018 (1) KHC 145 wherein it was held that "benefit of exemption as provided in the proviso to Clause (1) to S.60(1) is only to such portion of salary as is liable for attachment and has been under attachment for 24 months. If there has been an upward variation in the portion of the salary as is liable to attachment, benefit of exemption would not be available to the portion in excess of the portion, which was liable for attachment". This ruling is squarely applicable to the facts in this case. If there has been an upward variation in the portion of the salary as is liable to attachment, benefit of exemption would not be available to the portion in excess of the portion, which was liable for attachment". This ruling is squarely applicable to the facts in this case. 15. So, the argument of the learned counsel for the petitioner, that once attachment has continued for a period of twenty - four months relating to the same decree, the salary of judgment debtor is immune from attachment permanently, is incorrect. Such an interpretation is incompatible with the language of the proviso to S.60(1)(i) of the CPC. 16. Now the interpretation is that the wordings used in the proviso to S.60(1)(i) CPC is not meant to the effect that the further increase of the salary of the judgment debtor is permanently exempted from attachment. In fact, the decision in Suseela's case (supra) has not considered the law in its correct perspective. 17. Thus perceived, for the reasons stated earlier, we answer the reference by holding that the benefit of permanent exemption as provided in the proviso to clause (i) to S.60(1) CPC is available only to "such portion of salary" as is liable for attachment and has been under attachment for 24 months. It is made clear that where there is any upward variation in the attachable portion of the salary, the increased amount is liable for attachment, and the benefit of exemption would not be available to the portion in excess of the portion, which was liable for attachment. Hence, Suseela's case (cited supra) is not a good law and we agree with the interpretation given in Little Flower Kuries' case (supra). This reference is answered accordingly. The registry shall post this case before the Single Bench, which made the reference.