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2022 DIGILAW 1422 (MAD)

Rajenderan v. Ramachandran

2022-06-14

R.N.MANJULA

body2022
JUDGMENT (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the Order dated 26.10.2021 made in E.P.No.197 of 2020 in O.S.No.58 of 2013 on the file of the Sub-Court, Neyveli and prayed to set aside the same.) 1. This Civil Revision Petition has been preferred challenging the order of the learned Sub-Judge, Neyveli, dated 26.10.2021 made in E.P.No.197 of 2020 in O.S.No.58 of 2013. 2. The revision petitioner is the judgment debtor in the decree passed in O.S.No.58 of 2013. The respondent/decree holder has filed the execution petition for executing the decree and in which an order to recover the decree amount from the salary of the judgement debtor for 24 months has been passed. Aggrieved over that the judgment debtor has preferred this revision. 3. The learned counsel for the petitioner submitted that the respondent/decree holder has filed the 1st execution petition in E.P.No.54 of 2015 and in which a part of the decree amount was recovered by attaching the salary of the petitioner for 24 months; after a gap of 12 months, the 2nd execution petition is filed for recovering the balance decree amount; as per Section 60 of C.P.C., salary deductions for recovery of the decree amount can be done only for a maximum period of 24 months and thereafter 12 months cooling period; since the earlier execution petition filed in E.P.No.54 of 2015 was closed, the decree holder cannot attach the salary again in the second E. P.197/2020, despite the same is filed after 12 months. 4. The learned counsel for the petitioner attracted the attention of this Court to the second proviso to Section 60 C.P.C., which reads as follows: Second proviso to sec.60 C.P.C ''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.'' 5. The counsel for the petitioner claimed that as per the above proviso no further recovery can be made from the salary of the petitioner beyond 24 months. The counsel for the petitioner claimed that as per the above proviso no further recovery can be made from the salary of the petitioner beyond 24 months. It is agreeable that at one stretch the salary of the judgment debtor can not be attached for more than 24 months. If whole of the decree amount could be recovered within 24 months, no doubt the salary of the decree holder can be exempted from the attachment. 6. In this case, the decree amount could not be realized within the first 24 months from the date of attachment. Since the recovery is for one and the same decree, after giving the cooling period of 12 months another Execution Petition was filed. 7. It is held in the judgment of this Court in the case of The Federal Bank Limited, Royapettah Vs. Sundari Bhaskaran reported in ( 2007 (1) MLJ 431 ) that when the recovery is for two different decrees, the cooling period of 12 months need not be given. That would only imply that if the execution is for one and same decree alone, the cooling period of 12 months should be given. That means, if the decree amount is not realized with 24 months the decree holder has to wait for 12 months to attach the salary of the judgment debtor once again for recovering the balance. 8. In fact, the learned Executing Judge has also cited the above decision in support of his findings. For better clarity the relevant portion of the judgment is extracted as below: The Federal Bank Limited, Royapettah Vs. Sundari Bhaskaran 2007 (1) MLJ 431 ) “7. Attachment of salary could only be for a period of 24 months. Where the salary of the Judgment Debtor having been in continuous attachment under a decree for 24 months, the salary is exempted from attachment for a further period of 12 months “only where such attachment has been in execution of one and the same decree”. In the proviso, two main things are to be noted: (i) Salary is liable to attachment either continuously or intermittently for a total period of 24 months; (ii) Salary is exempted from attachment for a further period of 12 months and where such attachment has been in execution of one and the same decree. The emphasis is on the words “in execution of one and the same decree. 8. The emphasis is on the words “in execution of one and the same decree. 8. The initial order of attachment of salary in DRC No.231 of 2006, commenced in February 2005. Twenty four months would be completed by January 2007. Thereafter the order of attachment of salary for execution in O.S.No.1525 of 2000 could start in February 2007. For execution of two different decrees, the petitioner Bank need not wait for the exemption period of 12 months. In consideration for the same, the Executing Court ought to have passed appropriate orders. The Executing Court has erred in raising the order of attachment. It is to be noted that public money is involved because the Decree Holder is a Bank. While so raising order of attachment of salary is improper. The Executing Court was not right is saying that the Petitioner/Decree Holder could proceed only after 24 months plus 12 months. Such observation is not in accordance with Proviso to Section 60(i) of CPC. Hence, the impugned order cannot be sustained’.” 9. Such entitlement of cooling period in the execution of one and the same decree cannot be construed as the decree holder’s disentitlement to attach the salary once again subsequent to the cooling period. Such construction for the above provisio would cause a gross imbalance between the interest of the decree holder and the judgment debtor. In case the salary drawing judgment debtor does not have any other movable or immovable assets fit for attachment towards the realization of the balance of decree amount, the decree holder cannot recover the decree amount. 10. In fact, a person similar to the judgment debtor of this case seems to be eligible for get a salary hike each year. First 24 months recovery period along with 12 months cooling period would work out to three full years, During which time the salary of the decree holder seems to have raised and that is reflected in the salary details of the judgment debtor, provided by the decree holder. If a decree holder is precluded to attach the salary of the judgment debtor after he gets a good hike in his salary, it is not possible to enjoy the fruits of the decree. 11. If a decree holder is precluded to attach the salary of the judgment debtor after he gets a good hike in his salary, it is not possible to enjoy the fruits of the decree. 11. The cooling period of 12 months is to allow the decree holder to meet out his personal commitments for some time by being free from salary attachment after the first stretch of 24 months. If a salary drawing person avails an unsecured loan from any financial institutions or any one by agreeing to repay the loan in a few years’ monthly installments and later commits default and allows the creditor to get a decree against him and if the decree amount could not be recovered beyond the period of 24 months, despite allowing a cooling period, that will defeat the ends of justice and such an undue convenience if given to the judgment debtor that will be against the principles of equity. The salaried class borrower cannot be put on a different pedestal by conveniently interpreting the above proviso. 12. Hence the decree holder can restart the recovery after leaving a cooling period of 12 months. It doesn’t make any difference whether the restart is done in one and the same Execution Petition or in a Execution Petition filed subsequent to the expiry of the cooling period, provided if it is not barred by limitation. 13. The learned counsel for the petitioner further submitted that no interest should be calculated for the cooling period of 12 months. Such claim of the petitioner is not supported by law and there is no provision in C.P.C which explicitly exempts interest on the decree amount during the cooling period. So no exemption from interest for the cooling period cannot be given. The learned executing judge has rightly dealt the issue and passed the impugned order, which in my opinion does not require any interference. In the result, the Civil Revision Petition is dismissed and the order of the learned Sub-Judge, Neyveli, dated 26.10.2021, made in E.P.No.197 of 2020 in O.S.No.58 of 2013 is hereby confirmed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.