Awadh Narain Rai vs Abdul Hafiz

Amitav Benerji, J.—Two questions of general importance arise in this execution second appeal. The first question is whether the amount which is deducted from the salary of a Government servant for payment into his provident fund is attachable or not u/s 60(1)(k) of the Code of Civil Procedure, hereinafter referred to as the Code, in execution of a decree. The second question is whether the dearness allowance and the interim relief forms part of the salary or are exempt from attachment.

On behalf of the decree-holder it is contended that the amount so deducted for deposit in the provident fund is a part of the salary and is not exempt from attachment. The contention on behalf of the judgment debtor, however is that it is a compulsory deposit and is exempt from attachment. In Section 60 of the Code the properties which are not liable to attachment or sale, are stated. Sub-section (1)(k) of Section 60 of the Code reads as follows:

Section 60(1)(k) - All compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment.

This Sub-section shows that all compulsory deposits and other sums in a fund to which the Provident Funds Act applies are exempt from attachment. The emphasis has been laid on the words "in or derived from." It was contended that unless a deposit has been made in the provident fund account of the Government servant that amount remains a part of the salary and is not exempt from attachment. The words ''''compulsory deposit" have not been defined in the Code but in the Provident Funds Act, 1925 these words have been defined. These words have been defined in Section 2(a) of the Provident Funds Act, 1925 which runs as follows:

2(a) - "Compulsory deposit" means a subscription to, or deposit in a provident fund, which, under the rules of the Fund, is not, until the happening of some specified contingency, repayable on demand otherwise than for the purpose of the payment of premia in respect of a policy of life insurance (or the payment of subscriptions or premia in respect of a family pension fund), and includes any contribution and any interest or increment, which has accrued under the rules of the Fund but any such subscription, deposit or contribution and also any such subscription deposit, contribution, interest or increment remaining to the credit of the subscriber or depositor after the happening of any such contingency.

It is also clear that it is not attachable in view of the provisions of Section 60(1)(k) of the Code. The question in this case is not with regard to any amount which is deposited in the provident fund account but in respect of an amount which is deducted from salary for the above purpose. As a matter of fact, it was contended that the amount which is deducted from the salary for the purpose of the payment in the provident fund account is also attachable. This argument appears to be based on the absence of words "a subscription to in Section 60(1)(k)," but it is evident that Section 60(1)(k) itself refers to the Provident Funds Act, 1925 and the very words "compulsory deposit" are defined in the Provident Funds Act. It has been seen that even a subscription to the Provident Fund comes within the definition of compulsory deposit. In my opinion, the words "compulsory deposit" in Section 60(1)(k) will also include subscription to the provident fund. The same definition as in the Provident Funds Act would be applicable to all compulsory deposits u/s 60(1)(k) of the Code.

It is further to be noticed that when the pay bill of a Government servant is made and signed by the Government servant he authorises the deduction of certain amount by way of contribution to the provident fund. This amount is deducted from his salary before payment to him. The act of deduction and the act of crediting it to the provident fund account of the Government servant is a simultaneous act. No sooner the amount is deducted it is credited to the provident fund account which in effect means that a deposit in the provident fund account of the contributor is simultaneous with the deduction. It would, therefore, be evident that any amount which is deducted from the salary of a Government servant as contribution towards his provident fund becomes deposit in his provident fund simultaneously. Consequently, there is no hiatus between the act of deduction and the act of deposit. The entry in the relevant books of account or the paper transaction is merely a clerical job which may take time but will not have the effect of keeping the amount in a suspense account until the book entries are made. It is, therefore, clear that as soon as any amount is deducted from the salary of a Government servant for being deposited in the provident fund account of that Government servant it becomes effective immediately. Therefore, unless it could be argued that no amount is deductable from the salary of a Government servant for being deposited in his provident-fund account it is not open to argument that the said sum is attachable.

Learned Counsel for the decree-holder had contended that since Clause (k) is not included in Explanation. I to Section 60(1) of the Code it is not exempt from attachment. I am unable to agree. Section 60(1) contains a prohibition from attachment. The Clauses (g), (h), (i), (j), (l) and (o) are in respect of amounts which come in the hands of a person and are protected from attachment or sale whether before or after they are actually payable. The amount which is covered by Clause (k) does not come in the hand of the Government servant at all. In my opinion, although Clause (k) is not included in Explanation I the amounts are still protected from being attached in view of the specific provisions of the first proviso to Section 60(1). In this view of the matter also I am of the opinion that any amount which is deducted from the salary of a Government servant by way of subscription to his Provident Fund account is also not attachable u/s 60(1)(k) of the Code.

In respect of the second question learned Counsel for the judgment-debtor Appellant contended that the judgment-debtor gets a basic pay of Rs. 280/-. Rs. 110 as dearness allowance, Rs. 50/- as interim relief, Rs. 10/-as city allowance and Rs. 24/- as house rent. The disputes about these figures were resolved by the court below and before me these were the figures accepted by both the sides. Learned Counsel for the judgment debtor contended that the court below has completely overlooked the amendment to paragraph 107-B(6) of the 5th Volume of the Financial Hand Book which provides that all allowances granted to provide relief against the increased cost of living is also exempt from attachment. Learned Counsel for the decree holder did not dispute this fact but contended that in view of the recommendation of the Pay Commission the State Government had merged the entire amount of dearness allowance and interim relief in the pay itself and thus the salary of the judgment-debtor for the purposes of this case is Rs. 280/- + Rs. 110/- + Rs. 50/- i.e. a total of Rs. 440/-. He further contended that even if exemption is granted as is provided in Clause (i) of Section 60(1) of the Code there would be still Rs. 120/- per month of the salary liable to attachment. Clause (i) provides that the first Rs. 200/- of the salary plus half of the remaining amount is exempt from attachment. The first Rs. 200/- reaves a balance of Rs. 240/- half of which is exempt. Thus a total of Rs. 320/-out of the salary is liable to exemption. A sum of Rs. 120/- is, therefore, available for attachment, but since a sum of Rs. 50/- is deducted from the salary as subscription to the provident fund of the Government servant there remains a balance of Rs. 70/- only. This sum is clearly liable to attachment in execution of the decree. The lower appellate Court has also held that the decree-holder is entitled to realise a sum of Rs. 70/- per month from the salary of the Appellant. In my opinion, the ultimate conclusion of the court below as regards the amount available for attachment is correct.

No other point was argued.

In the result, therefore, the appeal fails and is dismissed but in the circumstances of the case I direct the parties to bear their own costs.