Terminal benefits, arrears of salary, leave salary, encashment of leave salary and Insurance amount can be attached and no exemption can be claimed on that amount - The Provident Fund money is exempt from attachment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/08/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(PD)MD.No.1378 of 2009
and
M.P.(MD)No.1 of 2009
M.Kannasami ... 1st respondent/Defendant/
Petitioner
vs
1.G.Manoharan ... Petitioner/Plaintiff/
1st Respondent
2.The Assistant Personal Officer,
Personal Branch,
Central Workshop,
Southern Railway,
Poonmalai,
Tiruchirapalli-620 004. :2nd Respondent/Garnishee/R2
Prayer
Civil Revision Petitions filed under Article 227 of the
Constitution of India, to set aside the order dated 29.06.2009 passed in I.A.223
of 2009 in O.S.No.13 of 2009, on the file of the Principal Sub Court,
Tiruchirapalli.
!For Petitioner ... Mr.S.M.S.Johny Basha
^For Respondents ... Mr.T.V.Sivakumar
:ORDER
Heard both sides
2.The defendant in O.S.No.13 of 2009, on the file of the Principal Subordinate Judge, Tiruchirapalli, is the revision petitioner.
3.The first respondent herein filed a suit against the revision petitioner for recovery of Rs.3,69,600/- on the basis of the promissory note executed by the revision petitioner in his favour. The first respondent also filed I.A.No.223 of 2009 under Order 38 Rule 5 C.P.C. for attachment of salary arrears and leave salary of the revision petitioner stating that the revision petitioner is going to retire on 31.03.2009 and arrears of salary, leave salary and other retirement benefits will be paid to him and unless attachment of these amounts is ordered, the first respondent cannot realise the amount and therefore, made the 2nd Respondent as Garnishee and prayed for attachment of retirement benefits to an extent of four lakhs. That was contested by the revision petitioner stating that the retirement benefits cannot be attached and therefore, the revision petition is not maintainable.
4.The learned Principal Subordinate Judge, Tiruchirappalli, after appreciating the contention of both the parties, passed an order of attachment in respect of arrears of salary and leave salary to an extent of 4 lakhs and allowed the application and it has been made clear in the decree that out of the retirement benefits, only a sum of Rs.4 lakhs being the arrears of leave salary and leave encashment of salary has been attached. Aggrieved by the same, this civil revision is filed by the revision petitioner.
5.The learned counsel appearing for the revision petitioner, Mr.S.M.S.Johny Basha, submitted as per the provisions of section 60 CPC and as per the judgment of the Honourable High Court reported in (2004)1 MLJ 43, in the case of Sathiyabama and others vs. M.Palanisamy and others, the retirement benefits cannot be attached and the lower Court committed an error in attaching the retirement benefits.
6.On the other hand, Mr.T.V.Sivakumar, the learned counsel appearing for the respondents submitted that in a similar case, the Honourable Supreme Court has held that arrears of salary can be attached as per the judgment reported in 1952(2) MLJ 265(SC), in the case of The Union of India vs. Shrimati Hira Devi and another and the Court below has only attached the arrears of salary, leave salary encashment and the Court has not attached the Provident Fund, Gratuity and therefore, the order of the lower Court is perfectly in accordance with law and need not be interfered with.
7.I have given anxious consideration to the submission made by the both counsels.
8.It is seen from the petition filed in I.A.No.223 of 2009, under 38 Rule 5 that the first respondent sought for attachment of retirement benefits, such as terminal benefits, arrears of salary, leave salary, encashment of leave salary and Insurance amount to an extent of 4 lakhs. Therefore, the first respondent only prayed for the attachment of arrears of leave salary, encashment of salary and he has not asked for attachment of terminal benefits and insurance amount and the lower Court also passed the order to that effect only as seen from the decree.
9.It is made clear in the decree the amounts to be attached are stated, which is as follows:- "Out of the retirement benefits such as terminal benefits, arrears of salary, leave salary, encashment of leave salary, insurance amount to the tune of Rs,.8,00,000/- (Rupees Eight lakhs) out of which Rs.4,00,000/- (Rupees Four Lakhs) being the arrears of salary, leave salary, encashment of leave salary has to be attached, which is due to the petitioner/plaintiff from the respondent." Therefore, the lower Court has correctly passed the order of attachment only in respect of arrears of salary and leave encashment salary and no order has been passed attaching the terminal benefits, which includes provident fund and Gratuity and computation of benefits etc.
10.It is seen from Section 60(i) of C.P.C that salary to the extent of first one thousand rupees and two-third of the remainder in execution of any decree other than a decree for maintenance is exempted and the pay and allowance of persons, to whom the Air Force Act, 1950 or the Army Act 1950 or the Navy Act, 1957, amounts derived from any fund or public provident fund or money payable under a policy of insurance and any allowance forming part of the emoluments of any servant of the Government or local authority, the appropriate Government may by notification in the official Gazette declare to be exempted from attachment or exempted from attachment. Section 60 C.P.C does not say the leave salary arrears are exempted from attachment. Therefore, the contention of the revision petitioner cannot be accepted.
11.As a matter of act, in the judgment reported in 1952(2) MLJ 265, in the case of The Union of India vs. Shrimati Hira Devi and another, it has been made clear that arrears of salary can be attached and no exemption can be claimed on that amount.
12.Further, in the judgment reported in (2004)1 MLJ 43, in the case of Sathiyabama and others vs. M.Palanisamy and others, the learned Judge has dealt with the various judgments wherein the Courts have held that Provident fund, Gratuity, pension amount cannot be attached and in this case, those amounts are not attached. Hence, the contention of the learned counsel appearing for the revision petitioner cannot be accepted.
13.Hence, the lower Court has correctly passed the order and therefore, I do not find any infirmity to interfere with the order of the lower Court. Accordingly, the civil revision petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
er To, The Principal Sub Judge, Tiruchirapalli.
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