Judgment · High Court · 2012

Heard Mr. P.J. Saikia, learned counsel appearing for the petitioner. Non e appears for the respondents despite receipt of notice from this Court. This is a petition under Article 227 of the Constitution of India challe nging the validity of the order dated 15.07.2010 as passed by the learned Civil Judge, Dibrugarh in petition No.1839/2009 in M.Ex. No.7/2006. By the said order the learned Civil Judge has vacated the order of status quo holding inter alia t hat the money deposited in the S.B. A/C No.11059 in the Vijaya Bank branch canno t be attached in view of Section 60 of the CPC as the said money has been deposi ted in connection with a Central Government sponsored scheme, namely, IDSMT. I have considered the entire order and find that the learned Civil Judge has mis-constructed the provisions of Section 60 CPC, which is reproduced hereu nder: 60. Property liable to attachment and sale in execution of decree.-(1) The follo wing property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of e xchange, hundis, promissory notes, Government securities, bonds or other securit ies for money, debts, shares in a corporation and save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-de btor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the ju dgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment o r sale, namely:- (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judg ment-debtor, his wife and children, and such personal ornaments as, in accordanc e with religious usage, cannot be parted with by any woman; (b) tools of artisans, and, where the judgment-debtor is an agriculturist, his i mplements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such p ortion of agricultural produce or of any class of agricultural produce as may ha ve been declared to be free from liability under the provisions of the next foll owing section; (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belongi ng to 1[an agriculturist or a labourer or a domestic servant] and occupied by hi m; (d) books of account; (e) a mere right to sue for damages; (f) any right of personal service; (g) stipends and gratuities allowed to pensioners of the Government 2[or of a lo cal authority or of any other employer], or payable out of any service family pe nsion fund 3notified in the Official Gazette by 4[the Central Government or the State Government] in this behalf, and political pensions; 5[(h) the wages of labourers and domestic servants, whether payable in money or in kind; 6[* * *] 7[(i) salary to the extent of 8[the first 9[10 [one thousand] rupees and two-thi rds of the remainder]] 11[in execution of any decree other than a decree for mai ntenance]: 12[Provided that where any part of such portion of the salary as is liable to at tachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachme nt until the expiry of a further period of twelve months, and, where such attach ment has been made in execution of one and the same decree, shall, after the att achment has continued for a total period of twenty-four months, be finally exemp t from attachment in execution of that decree;] 13[(ia) one-third of the salary in execution of any decree for maintenance]; 14[(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), a pplies;] (k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 15[1925] (19 of 1925), for the time being applies insof ar as they are declared by the said Act not to be liable to attachment; 16[(ka) all deposits and other sums in or derived from any fund to which the Pub lic Provident Fund Act, 1968 (23 of 1968), for the time being applies, insofar a s they are declared by the said Act as not to be liable to attachment; (kb) all moneys payable under a policy of insurance on the life of the judgment- debtor; (kc) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodatio n apply;] 17[(l) any allowance forming part of the emoluments of any 18[servant of the Gov ernment] or of any servant of a railway company or local authority which the 19[ appropriate Government] may by notification in the Official Gazette declare to b e exempt from attachment, and any subsistence grant or allowance made to 20[any such servant] while under suspension;] (m) an expectancy of succession by survivorship or other merely contingent or po ssible right or interest; (n) a right to future maintenance; (o) any allowance declared by 21[any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and (p) where the judgment-debtor is a person liable for the payment of land revenue , any movable property which, under any law for the time being applicable to him , is exempt from sale for the recovery of an arrear of such revenue. 22[Explanation I.-The moneys payable in relation to the matters mentioned in cla uses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale, w hether before or after they are actually payable, and, in the case of salary, th e attachable portion thereof is liable to attachment, whether before or after it is actually payable.] 23[24 [Explanation II.-In clauses (i) and (ia)], (cid:28)salary (cid:29) means the total monthl y emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (l), derived by a person from his employment whether on dut y or on leave.] 25[Explanation 26[III].-In clause (l) (cid:28)appropriate Government (cid:29) means- (i) as respects any 27[person] in the service of the Central Government, or any servant of 28[a Railway Administration] or of a cantonment authority or of the p ort authority of a major port, the Central Government; 29[* * *] (iii) as respects any other 30[servant of the Government] or a servant of any ot her 31[* * *] local authority, the State Government.] 32[Explanation IV.-For the purposes of this proviso, (cid:28)wages (cid:29) includes bonus, and (cid:28)labourer (cid:29) includes a skilled, unskilled or semi-skilled labourer. Explanation V.-For the purposes of this proviso, the expression (cid:28)agriculturist (cid:29) means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer. Explanation VI.-For the purposes of Explanation V, an agriculturist shall be dee med to cultivate land personally, if he cultivates land- (a) by his own labour, or (b) by the labour of any member of his family, or (c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.] 33[(1-A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exem ption under this section shall be void.] (2) Nothing in this section shall be deemed 34[* * *] to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately a ppurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land. 35[* * *] It transpires from the provision as extracted that any execution Court i n seison of the matter can attach any ’money’ of the judgment debtor wherever it is retained in due process of the law. When a fund even if it is related to Cen tral Government Scheme is placed in trust in the account of the judgment debtor (JD), e.g. the respondent Dibrugarh Development Authority (DDA) herein, it has t o be deemed that the money has been parted with under the management and control the said authority. It is very surprising to note that a distinction has been s ought to be made as regards the nature of the account. How a personal account ca n be maintained in the name of the DDA when the DDA is an instrumentality of the State. In view of this, the impugned order suffers from serious illegality and warrants to be interfered with by this Court. According the said order is set as ide. The learned Civil Judge, Dibrugarh, by passing an appropriate order shal l freeze the said S.B. A/C No.11059 (Vijaya Bank, Dibrugarh) forthwith and unles s the decretal amount is paid by the judmgnent-debtor(JD), the same arrangement shall continue. After waiting a fortnight from the order of freezing (attachment ), the said Court shall pass the order of recovery by aid of the bank authority to satisfy the decree. With this observation and direction, this petition stands allowed. Return the LCRs.