Whether salary of Judgment debtor can be attached for unlimited period of time in execution of money decree?

 Bapu Gadgil
Vs.
Respondent: Smt. Rama

Hon'ble Judges/Coram:
N.V. Dabholkar, J.

Civil Procedure Code, 1908 - Section 60(1)(i) Proviso - Attachment - Properties liable - Attachment of salary for a period of twenty-four months - Exempt from attachment for a gap of twelve months - Salary not liable again after time gap of twelve months for the execution of the same decree.

Citation: 2003(1)ALLMR726, 2003(105(1))BOMLR684, I(2003)DMC770

On reading proviso in its totality, it appears that salary portion liable to attachment in execution of a decree is attachable for a period of twenty-four months continuously or intermittently; in execution of one and the same decree. For a gap of twelve months, such salary portion is totally exempt from attachment by anybody and even for execution of different decree. The salary portion would again be liable for attachment after time gap of twelve months, but for the purpose of execution of a different decree and not one and the same decree for the purpose of execution of which it was already attached for a period of twenty-four months earlier.

JUDGMENT

N.V. Dabholkar, J.

1. Heard Advocates S/Shri Kasliwal and Dixit for respective parties. Being an issue regarding interpretation of Section 60(l)(i) of the Code of Civil Procedure and more particularly proviso to said sub-section, Advocates S/Shri S.C. Bora and R.R. Mantri have also voluntarily rendered assistance, as amicus curiae, in trying to interpret the said provision.

2. The revision petition arises because on 19.6.1994, the Court of Civil Judge, Junior Division, Bhusawal in Regular Darkhast No. 47/1990 ordered attachment from salary of judgment-debtor/revision petitioner at the rate of Rs. 1,000/- per month.

3. Majority of the facts in the matter are undisputed. The parties are husband and wife and husband is Government servant. Wife obtained a decree for recovery of an amount of Rs. 24,999/- against the husband in Regular Civil Suit No. 263/ 1989. Admittedly, this was a decree of payment in lieu of Stridhan items and not a decree for maintenance. Regular Darkhast No. 47/1990 filed by wife for recovery of this amount and in August, 1990, the Executing Court ordered attachment Under Order 21 Rule 48 of the Code of Civil Procedure read with Section 60(l)(i) for attachment at the rate of Rs. 500/- per month from the salary payable to the husband. The amount was accordingly deposited with the Executing Court from January, 1991, and continuously for a period of twenty four months.

In September, 1991, wife filed application for directing enhanced deduction at the rate of Rs. 2,000/- per month. That application is yet undecided. Husband filed an application Exhibit 38 and prayed that after deduction for twenty four months, his salary is totally exempt from any further deduction by virtue of provision to Section 60(l)(i) of the Code of Civil Procedure. The Court has also not issued such a declaration pursuant to request in application Exhibit 38.

4. In the year 1994, wife filed application Exhibit 44 and prayed for further attachment of the salary of the petitioner. The Executing Court, according to revision petitioner, without calling say of the judgment-debtor, passed the impugned orders on 19.6.1994 directing deduction and attachment at the rate of Rs. 1,000/- per month from the salary of judgment-debtor.

5. Section 60 of the Code of Civil Procedure deals with the property liable to attachment and sale in execution of decree and proviso to said section gives particulars, which are not liable to such attachment for sale. The provision with which we are concerned is being reproduced hereinbelow for ready reference.

"...... provided that the following particulars shall not be liable to such attachment or sale, viz.

(a) to (h)..........

(i) salary to the extent of the first four hundred 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 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."

6. According to Advocate Mr. Kasliwal, the proviso exempts the part of such portion of the salary, as is liable for attachment, from attachment, once the said attachment was effected for a total period of twenty four months, whether continuously or intermittently. So far as execution in one and the same decree is concerned, the exemption is total and after deduction from salary for twenty four months, the creditor cannot deduct any further amount from the salary of Government servant in satisfaction of same decree, although otherwise liable to attachment. Even if some other creditor is to execute different decree obtained by him against the same judgment-debtor, he will have to wait for the time gap of twelve months before starting execution of his decree by attachment of portion of salary liable for such attachment.

7. As against this, Advocate Mr. Dixit states that, if the latter half of proviso is to be read as putting a ceiling for attachment of salary for one and the same decree only for twenty four months, then the central clause "such portion shall be exempt from attachment until the expiry of a further period of twelve months" would become redundant. According to Mr. Dixit, therefore, attachment of portion of salary for the purpose of execution of one and the same decree is permissible for a total period of forty eight months, with a gap of twelve months between two successive spans of twenty four months and, therefore, the impugned order, according to Mr. Dixit, calls for no interference.

8. So far as present execution proceeding is concerned, there is no dispute that part of the portion of the salary, which was liable for attachment, has been under attachment for a period of twenty four months. The only question is whether the same decree-holder wife can again attach it for a further period of twenty four months because previous attachment has been more than twelve months ago.

9. In order to arrive at correct interpretation of the provision, we have repeatedly read the proviso and it is felt that it should be considered in three parts. First part being the portion proceeding the clause "such portion shall be exempt from attachment until the expiry of a further period of twelve months" relied upon by Advocate Mr. Dixit. The clause relied upon by Advocate Mr. Dixit should be second portion and remainder part of the proviso should be the third.

On reading the first portion, it can be seen that the salary portion liable for attachment, can be attached either continuously or intermittently for a maximum period of twenty four months and not beyond that. Once such an attachment has continued for a period of twenty four months, the salary portion itself is exempt from attachment. Consequently, the judgment-debtor would enjoy the exemption against every creditor and decree-holder till expiry of further period of twelve months. The object of exemption appears to enable the judgment-debtor public officer or Government servant and others to maintain themselves and their families in a suitable manner.

Second portion, which clause according to Mr. Dixit becomes redundant if the proviso is interpreted to mean that attachment can be only for twenty four calender months and no more, speaks only regarding exemption from attachment of the salary portion liable to attachment. The clause by itself is silent about the number of decrees, the number of creditors/decree-holders.

10. Before proceeding to consider the third portion of the proviso, it must be pointed out that the phrase "a total period of twenty four months" occurs twice in the said proviso, once in the first part and once in the third part of the proviso, as carved for the purpose of convenient consideration. The third clause begins with the phrase "where such attachment has been made" and the word "such" has relation with the phrase "whether continuously or intermittently" in the first part of the proviso. The words "of one and the same decree" and "that decree" appearing in the middle and concluding part of third portion of the proviso, are important in considering the interpretation of the proviso.

The first part of the proviso, as already stated earlier, declares the salary portion totally exempt from liability to attachment and this exemption, by virtue of second part, is total, for a period of twelve months. The third portion speaks about the extent of exemption, so far as one and the same decree is concerned and it appears that when the attachment, as indicated in the first portion i.e. whether continuously or intermittently, has continued for a period of twenty four months, for the purpose of execution of one and the same decree, the salary portion liable for attachment is finally exempt from attachment so far as that decree is concerned. The latter clause takes away the protection accorded to the salary portion liable to attachment, which is total for a period of twelve months, so far as attachment for the purpose of execution of any other decree for which it was not so attached earlier for a period of twenty four months, whether continuously or intermittently. Consequently, after a time gap of twelve months, the salary portion liable to attachment can be attached by the same creditor, but only for execution of another decree than the one for which it was already attached for a period of twenty four months, or it may be liable for attachment by another creditor for execution of another decree.

If interpretation, as tried to be attributed by Advocate Mr. Dixit, is to be accepted, the third part of the proviso would have read "after the attachment has continued for a total period of forty eight months" instead of "twenty four months".

11. Thus, it is evident that on reading proviso in its totality, it appears that salary portion liable to attachment in execution of a decree is attachable for a period of twenty four months continuously or intermittently; in execution of one and the same decree. For a gap of twelve months, such salary portion is totally exempt from attachment by anybody and even for execution of different decree. The salary portion would again be liable for attachment after time gap of twelve months, but for the purpose of execution of a different decree and not one and the same decree for the purpose of execution of which it was already attached for a period of twenty four months earlier.

12. In the light of interpretation of the proviso as above, the impugned order dated 19.6.1994, which is second attachment of the salary portion after the same having been already attached for a period of twenty four months in the past, will have to be quashed and set aside as illegal.

13. The revision petition is allowed. The impugned order is quashed and set aside. It is clarified that the decree-holder, by virtue of this order, will not be debarred from executing the decree by other permissible modes.

Rule made absolute accordingly.

Print Page