Lakshminarayanan v. A. Veeraraghavalu And Another

1. C.M.A 1030 of 1989 is against the order dated 19-10-1989 passed in I.A 12157 of 1989 in O.S 5733 of 1989 on the file of the IV Asst. Judge, City Civil Court, Madras dismissing the said LA. C.M.A. 1031 of 1989 is also against the dismissal order passed on the same date in LA. 19791 of 1989 in the same suit. These CM. As are filed by the plaintiff in the suit and the suit is for recovery of a sum of money said to have been lent by the plaintiff to the defendant under a promissory note. The former LA. was to issue an order of interim injunction, restraining the garnishee, the second respondent in the said LA. from paying a sum of Rs. 36575 with interest to the defendant first respondent therein, pending disposal of the suit. The latter I.A is for directing the said garnishee to deposit the said sum into the trial court. Admittedly, the said sum represents certain retirement benefits of the defendant, who was working as an employee under the said garnishee. The affidavit in support of the I.As in the court below, stated that the defendant was going to retire on 30-6-1989 and that he had given a written undertaking in the said promissory note itself that he would repay the amount due under the promissory note from out of the said retirement benefits. The court below has dismissed each of these I.As by two separate orders. The reasoning is that the abovesaid retirement benefits cannot be attached under S. 60 C.P.C, and that hence the injunction and direction sought for under O. 39 and S. 151 C.P.C, cannot be granted. Against the said two orders, the abovesaid respective two C.M.A.s have been filed.

2. I do not find any error in thr order of the court below. Admittedly, the said retirement benefits fall under the proviso to S. 60(1) C.P.C, which enumerates the properties which cannot be attached. The learned counsel for the appellant no doubt contended that S. 60 C.P.C, would apply only in the case of attachment in execution of decree' and not when the suit is pending and has not resulted in a ‘decree. But, this contention has no merit in view of Order 38 rule II-A C.P.C, which says—

“The provisions of flits Code applicable to an attachment made in execution of a decree shall so far as may be, apply to an attachment made before judgment Which continues after the judgment by virtue of the provisions of R. 11.”

The said R 11 says: —

“Where property is under attachment by virtue of the provisions of this Order, and decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a reattachment of the property.”

This O. 38, R. 11-A was introduced in 1976, by an amendment of C.P.C in 1976.

3. The learned counsel for the respondent no doubt cited the decision reported in State of Punjab v. Dinanath . A.I.R 1984 S.C 352.. But that decision has no application to the present case. That decision arose under the Punjab Land Revenue Act and the Court held that S. 60 C.P.C, is not applicable to the order for recovery passed under the said Act, since it is not ‘decree’ within the meaning of that term under C.P.C In the present case, in view of O. 38 R. 11-A, C.P.C S. 60 C P.C, will certainly be applicable to attachment before judgment i.e, even though the suit has not yet resulted in a ‘decree’ as such.

4. The learned counsel for the appellant then submitted that what was sought for was only an injunction under O. 39 C.P.C and not an attachment under O. 38 R. 5 C.P.C But the injunction or the direction sought for amounts only to attachment of a debt due to the defendant employee from his employer, the garnishee, by issue of a prohibitory order, to the garnishee, as in the case under O. 21, R. 46(1) C.P.C which provides the mode of ‘attachment’ of debts and other properties not in possession of judgment debtor, the said mode being issue of such prohibitory orders.

5. Further, the injunction under O. 39, R. 1 of R. 2 C.P.C is a discretionary relief and where the property cannot be attached as stated above, the injunction under O. 39. R. 1 or R. 2, C.P.C cannot be granted restraining the actual possessor of the said property of the defendant from giving that property to the defendant. The object with which S. 60(1) proviso is enacted cannot be frustrated by resorting to O. 39.

6. It has also been held that the issue of injunction either under O. 39 or S. 151, C.P.C should neither conflict with the express provisions of the Code nor go against the intentions of the Legislature (Vide the decision of the Supreme Court in Manoharlal Chopra v. Rai Bahadur Raja Seth Hiralal . 1962-1-S.C.R Supp. 450., and the decision of this court in Unnamalai Achi and another v. Umayal Achi and others . 81 L.W 266=1968-2-M.L.J 544..

7. The learned counsel howerer submitted that the defendant has given a written undertaking in the promissory note itself that he would pay back the amount due under the promissory note from out of the above said retirement benefits and that hence the injunction could be granted. But S. 60 (1A), C.P.C specifically states as follows—

“Notwithstanding anything contained in any other Law for the time being in force, an agreement by which a person agrees to waive (he benefit of any exemption under this section shall be void.”

So, the undertaking given according to this sub-section (1-A) will have no effect in considering whether attachment of the said retirement benefits could be made.

8. Therefore, there is no merit in these two C.M.As Hence, I am not admitting the same and they are dismissed.

RR/VCS