Shaik Noorjahan v. M. Rajeswari.

Judgement

Heard both the counsel.

2. Aggrieved by the order and decree dated 11-6-2009 passed by the Court of Principal Junior Civil Judge, Tirupati in O.E.P. No. 196 of 2008 in O.S. No. 1335 of 1998 under Order 21, Rule 48 of CPC, in ordering attachment of the salary of the judgment-debtor at the rate of Rs. 1,500/- per month, the judgment-debtor filed the present revision.

3. From the material available on record it could be seen that the respondent-decree holder filed suit in O.S. No. 1335 of 1998 on the file of Principal Junior Civil Judge, Tirupati for recovery of money and the suit was decreed. As the judgment-debtor failed to pay the decretal amount of Rs. 90,577/-, the decree-holder filed E.P. No. 181 of 2001 for attachment of her salary and the same was allowed and accordingly the salary of the judgment-debtor was attached continuously for a period of thirty five months. After filing of E.A. No. 964 of 2006 by the judgment-debtor, the attachment was raised. Again after a gap of twelve months, the decree-holder filed the present execution petition in E.P. No. 196 of 2008, seeking attachment of her salary. By the impugned order dated 11-6-2009, the Court below taking the view that the present E.P. was filed after a gap of 12 month after the attachment in earlier E.P. was raised, allowed the petition and held that the execution petition is maintainable and the decree holder is entitled for recovery of the decretal amount as per the terms of the decree. Challenging the same, the present revision is filed.

4. The learned counsel appearing for the petitioner submitted that the salary of the petitioner was under continuous attachment for a period of 35 months, though it cannot be continued beyond 24 months. On filing of E.A. No. 964/2006 by the decree holder, the attachment was raised. Relying on proviso to clause (i) of section 60 (1) of cpc he contended that since the salary of the judgment-debtor is continuously under attachment for 24 months, again attaching his salary in the very same decree, is not permissible and is exempted. He contended that the Court below without noticing the exemption provided under proviso to clause (i) under sub-section (1) of Section 60, ordered attachment and the same is liable to be set aside.

5. On the other hand, the learned counsel for the petitioner supporting the impugned order sought for dismissal of the revision.

6. section 60 of cpc provides for property liable to attachment and sale in execution of a decree. The proviso to sub-section (1) of Section 60 provides the particulars that are exempted from attachment. Clause (i) is relevant for the present purpose and the same is extracted as under for ready reference :

(i) salary to the extent of 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;

7. A bare reading of the above provision clearly shows that where any part of the attachable portion of the salary of an employee is under attachment for a continuous period of twenty four months, the same shall be exempted from attachment for a further period of twelve months and if such attachment for twenty four months is in one and the same decree, after completion of twenty four months of attachment, it is finally exempt from attachment in execution of that decree.

8. The other factor to be noticed is that the proviso uses the words any part of such portion of the salary as is liable to attachment, which means the attachment can be for part of portion of such attachable salary. Therefore, even if part of such attachable portion is under attachment for a continuous period of twenty four months, it gains the exemption under the proviso to clause (i) to section 60(1) of cpc. Interpreting the above proviso to clause (i), similar view was expressed by the Division Bench of the High Court of Calcutta in Biman Kumar Biswas v. M/s. Commercial Engineering Corporation Pvt. Ltd., AIR 1983 Cal 45. The relevant portion of the judgment is extracted as under :

"4. ...It is quite clear on the terms of this proviso that even where a part of the attachable portion of the salary is attached continuously or intermittently for a total period of 24 months, the judgment debtor is entitled to the exemption prescribed. It is not necessary that the entire attachable portion of the salary should be subjected to such attachment before the judgment debtor becomes entitled to the exemption. The clause as is liable to attachment qualifies the term portion of the salary, that is, the attachable portion of the judgment debtors salary, a part whereof had been subjected to attachment. The clause does not mean, as the learned Judge in the execution Court seems to think, that until the Court correctly determines what is attachable, the period of 24 months does not start to run notwithstanding the fact a part of the judgment debtors attachable portion of the salary had already been attached. The proviso, in our view, cannot be read to convey any such implication as its terms clearly indicate otherwise."

9. In the present case, as already noted above, the salary of the petitioner was under attachment for a period of thirty five months and only on filing of an E. A. 964 of 2006, the attachment was raised. The salary of the petitioner was under attachment for more than twenty four months in the present case. Therefore, as per the above proviso to clause (i) of sub- Section (1) of Section 60, after completion of the twenty four months of attachment, again attachment of salary for the second time, in the very same decree is not permissible, and is finally exempted from attachment.

10. The Court below has not completely understood the above proviso and ordered salary attachment on the ground that there is twelve months gap after the raising of the earlier attachment. The gap of twelve months envisaged under the proviso will not apply to the very same execution proceedings, in view of the clear language in the proviso.

11. For the foregoing reasons, the impugned order is set aside and the revision is allowed. No cost.

Revision allowed.