Syed Abdul Azeez Khan v. W.J Fowler And Another

This is a petition by the decree-holder in O.S No. 61 of 1961 on the file of the Court of the District Munsif, Sholinghur, to revise the order of the Court of Small Causes, Madras in E.P No. 4825 of 1961 in the suit. The simple question for decision in this case is whether the amounts standing to the credit of a railway employee in a provident fund is attachable in execution of a decree obtained against him because he has retired from service. Even where an order has been issued directing the payment of the amount to him, clearly it is not so attachable. Under S. 3 of the Indian Provident fund Act any amount standing to the credit of any subscriber or depositor shall not be liable to attachment under any decree or order of any civil revenue or criminal Court in respect of any debt or liability incurred by the subscriber or depositor. There has been no nomination in this case and so there is no necessity to refer to S. 5 of the Act. The amount does not become the judgment debtor's till it is paid out to him. It may be that after the amount is paid out to him the judgment-debtor does not pay the decree-holder, the decree holder may apply for the arrest of the judgment debtor. But clearly when such an amount is still in the hands of the authorities, that is the Garnishee, who holds the provident fund in this case any decree holder holding a decree against the judgment debtor, a subscriber, cannot attach that amount. The result is that this civil revision petition has to fail.

Learned Counsel for the decree holder referred me to a decision in Haneswar v. Bepin Behary(1). There the moneys standing to the credit of the retired employee was held attachable because R. 10 of the rules was in this form.

“The amount which accumulates to the credit of a subscriber in permanent employ will, when he quits the service become his property and will be handed over to him, unless the accounts officer has received notice of an attachment, assignment, or encumbrance affecting the disposal of the amount or any portion of it. Should such notice have been received the Account Officer will hand over to the subscriber only that portion of the amount which is not affected by the attachment assignment or encumbrance and shall obtain the orders of the comptroller and Auditor General, as Administrator of the fund regarding the disposal of the balance.”

So it would seem that the decision was clearly based on the rules relating to the provident fund. These rules were made under Provident Funds Act of 1897. The present Act makes the amount in a provident fund to the credit of a subscriber not attachable in execution of a decree against him. Even the decision in Central Bank Of India Ltd.…Plaintiff; v. M.V.V Rao…Defendant.(2) will not help the petitioner because there it was held that a compulsory deposit in a railway provident fund is, under S. 3 of the Provident funds Act 1925, immune from attachment, even after it has become payable and the immunity extends upto the time it remains to the credit of the subscriber.

In Union of India v. Hira Devi(3) it was held that the definition in Sec. 2(a) of the Provident Funds Act makes it clear that the provident fund amount not paid to the subscriber after the date of his retirement is also a compulsory deposit. Such a deposit cannot be assigned or charged and is not liable to attachment under See. 3(1) of the Provident Funds Act. It is exempt from attachment and sale also under S. 60(k) of the Civil Procedure Code.

It is, therefore, clear that the Provident fund amount in this case is not liable to attachment. This civil revision petition therefore fails and is dismissed and in the circumstances there will be no order as to costs.

V.C.S