Bhagwan Dass Ramprosad vs Secretary of State

Dhavle, J.—This is an application in revision against an order of the Munsif, First Court, Patna, disallowing an application made by the petitioner under Order 21, Rule 48(3) for recovery of three monthly instalments of Rs. 45 each.

In March 1938, the petitioner obtained a Small Cause Court decree at Howrah against A.W. Lawie, an employee in the telegraph department, and put it into execution in Patna, as the judgment-debtor was posted here. The execution case at first numbered 848 of 1938 of the second Court of the Munsif, but by transfer became No. 1086 of 1938 of the first Court of the Munsif. In this latter Court there was another decree under execution--execution case No. 157 of the second Court which in the first Court became No. 825 of 1938--and in this execution an attachment order had issued against the salary of the same judgment-debtor. Under this attachment the Postmaster-General was deducting Rs. 40 a month, beginning on 1st March 1938, from the salary of the judgment-debtor and sending it to the Court after deducting the money-order commission of eight annas. Two such instalments had been sent to the Court, when the petitioner''s execution case was received in this Court. Ho applied for rateable distribution, and his prayer was allowed.

There were only four instalments due under the attachment. The instalment that should have come in the beginning of May did not arrive, but, on 28th May, the Postmaster-General made an enquiry about the date of the decree under execution, on account of the amendment of Section 60(1)(i), Civil P.C., by Act 9 of 1937 which had recently been brought to his notice by the Director-General of Posts and Telegraphs. It was only on 12th July that the Munsif replied to this enquiry of the Postmaster-General. Meanwhile, the petitioner realised that the whole amount leviable under the attachment of the decree-holder would be realised by the attachments in May and June, and that after that there would be nothing for his application for rateable distribution to operate on.

He, therefore, asked that the order for rateable distribution passed in his favour should be recalled and an attachment issued in his execution case to the extent of Rs. 50 a month from the salary of Lawie. This was allowed, and a writ of attachment sent to the Postmaster-General on 12th June. On 18th June the Postmaster-General returned the writ on the ground that Lawie''s salary was still under attachment in the other case: it appears that he had actually made the necessary deductions from Lawie''s salary but had not yet heard from the Munsif and had therefore not sent on the sums withheld from the judgment-debtor. The petitioner then complained that the Postmaster-General was not right to return this attachment or to withhold the sums of money that he had deducted from the salary payable to Lawie in May and June but had not sent to Court. Ultimately he made a claim against the Postmaster-General under Order 21, Rule 48, Sub-rule (3) for the recovery of three instalments at Rs. 45 a month for the months of July, August and September.

There was before this a contempt proceeding against the Postmaster-General, which was discharged on the ground that this officer was not deliberately in contempt. The learned Munsif, from whose order of dismissal the present application arises, proceeded on the footing that though the decree of the other decree-holder would have been satisfied and the attachment at his instance come to an end at the time the petitioner took out his attachment, if the Postmaster-General had remitted to the Court the instalments due in the beginning of May and June, the result of the moneys being withheld by him, rightly or otherwise, was that that execution was not satisfied and the attachment was still subsisting at the time the petitioner''s writ of attachment was issued by the Court or returned by the Postmaster-General on the ground of the other attachment. It is implied that as the previous attachment did in fact subsist and had not been withdrawn, the return of the petitioner''s writ of attachment was in order.

Another point argued in the lower Court was that at any rate Rs. 5 per month was available for attachment at the instance of the petitioner as the judgment-debtor''s pay was Rs. 190. The learned Munsif rejected this and accepted the Postmaster-General''s contention that only Rs. 35-10-6 was attachable, while Rs. 40 was being attached in the earlier execution case. It has been urged before me that the Postmaster-General is liable under Order 21, Rule 48, Sub-rule (3), because the attachable proportion of Lawie''s salary was not already being withheld and remitted to the Court in pursuance of a previous and unsatisfied order of attachment.

This contention and the other contention that Rs. 5 at any rate was attachable under the writ of attachment unsuccessfully taken out by the petitioner make it necessary to look into the figures. The earlier decree was obtained in 1935; but the petitioner''s decree was obtained in 1938, and as para. 1 of his petition to this Court shows, was based on threes hand notes executed after 1st June 1937. Act 9 of 1937 enlarges the exemption from attachment of judgment-debtor''s salaries provided the proceedings relate to suits instituted on or after 1st June 1937. There is no dispute that the petitioner is hit by this amendment. His judgment-debtor''s salary at the relevant time is taken by both the parties at Rs. 190.

The new Clause (i) of Section 60(1), Civil P.C., exempts from attachment in execution of a decree the salary of any public officer to the extent of the first hundred rupees and one-half of the remainder of such salary. This provision by itself would operate to exempt Rs. 145 out of Lawie''s salary of Rs. 190 from attachment. The petitioner claims to be entitled to attach the rest. But this claim overlooks Clause (k) of Section 60(1), which also exempts all compulsory deposits in any fund to which the Provident Funds Act, 1925, applies in so far as they are declared by that Act not to be liable to attachment. It appears that the judgment-debtor belongs to a recognized Provident Fund and that Rs. 12 a month is deducted from his salary on this account. The exemption of deposits in provident funds is separate from the exemption in respect of salaries given by Clause (i), and the result would appear to be that the recurring contributions of the judgment-debtor to the provident fund must, in working out the amount attachable, fall on that moiety of the excess of the salary over the first hundred rupees which is not already reserved for the judgment-debtor by Clause (i).

In other words, a decree-holder such as the petitioner would only be entitled to look to the balance after deducting this provident fund contribution of Rs. 12 from the Rs. 45 that is left over after giving effect to the exemption granted by Clause (i). There is also a monthly Income Tax deduction of Rs. 6-11-0 from the salary of Lawie. The note to Rule 64 at p. 19 of Vol. II of the Post and Telegraphs Manual says that subscriptions to funds recognized by Government.... and recoveries of Income Tax, deductions for which appear in the pay bills, should be excluded from the aggregate pay for the purpose of attachment by a civil Court. The meaning of this was apparently taken in the lower Court to be that these deductions are first to be made from the gross salary and that then the balance is to be dealt with under Clause (i). This method is distinctly favourable to the decree-holder if the deduction on account of contributions to the provident fund should exceed the Income Tax payable, but it seems to assume that ''salary'' means net salary.

Clause (i) does not say anything about the Income Tax, but the learned Assistant Government Advocate who appears for the Postmaster-General has contended that the exemption created by Clause (i) must be read in the light of what Section 60(1) says about property over which the judgment-debtor has a disposing power which he may exercise for his own benefit. It seems to me, however that the reference to disposing power must be limited to the context, which is indicated by the words that follow:-- "whether the sum be held in the name of the judgment-debtor or by another person in trust for him or on his behalf." Disbursing officers are now a days required by the Income Tax Act to deduct Income Tax at the source, and therefore this portion of the salary may be said to be beyond the disposal of the salary holder. But there is nothing] in Clause (i) to indicate that the salary mentioned there is the net salary. It may be that the duty cast by statute upon the disbursing officer to deduct the Income Tax due operates, in relation to Clause (i), like a summary attachment and realization out of the attachable proportion of the salary. But it may also be that the Legislature did not intend to throw the Income Tax on the attachable proportion of the salary and leave the salary-holder a clear Rs. 100 a month plus one moiety of the excess.

It is however not necessary to pronounce definitely on that point in the present case, for, as I have already shown, out of a salary of Rs. 190 a decree-holder like the petitioner could not look to more than Rs. 33 per month for his writ of attachment to operate on, and as it happens, the amounts due under the previous attachment were both of them in excess of this figure. Clearly, therefore, there was nothing to attach under the writ taken out by the petitioner, provided the previous attachment was subsisting at the time it was to be given effect to.

This brings me to the other point raised. As the Postmaster-General had the moneys deducted in May and June in his own hands when he returned the writ of attachment issued at the instance of the petitioner, it is urged for the petitioner that he had no right to keep the moneys and prolong the attachment. But the Postmaster-General was making from the Munsif himself enquries which cannot be characterised as improper; the same Munsif issued a writ of attachment for the petitioner without giving a reply, and the Postmaster-General could not then assume that the previous attachment was at an end. He might perhaps have done well to inquire how he was to treat the former attachment. As things turned out, the earlier decree-holder afterwards asked the Court to return to the judgment-debtor the moneys withheld by the Postmaster-General in May and June.

The prayer was allowed, the moneys returned to the judgment-debtor in August and the attachment prolonged to July and August in consequence. The petitioner obtained his share out of the moneys realised by the prolonged attachment, which implies a definite recognition by him that the attachment was subsisting even in July and August. There could be no attachment through the Postmaster-General in September because Lawie applied in insolvency in August. Nothing could therefore have been attached for the petitioner in the turn that the matter actually took at the instance of the other decree-holder. As to the instalments of May and June, the attachment had not in fact been withdrawn by the 18th June, and the monies withheld by the Postmaster-General were disposed of in accordance with orders obtained from the Court not by the Post-master-General but by the other decree-holder in the interest of the judgment-debtor. There was undoubtedly much confusion in the case. The petitioner was not the only decree-holder that was making all sorts of applications to the Munsif, nor was the court apparently looking in detail, into the working of the section. I doubt if it is right for the Court to leave to the Postmaster-General the interpretation of a section which may give rise to many controversies, or for the Postmaster-General to undertake this task. He has his Manual, but the Court must follow the Code. Sub-rule (2) of Rule 48 of Order 21 speaks of the attachable portion of the salary.

The Postmaster-General, not unnaturally, referred the Court in his correspondence to Rule 63 of vol. 2, Post and Telegraphs Manual which, however, only speaks of a previous order of attachment, without saying anything about the attachable portion. It would, I venture to think, be better in such cases, for the Court, in the interests of all concerned, to obtain on the application of the decree-holder the relevant materials from the Postmaster-General in order to work out the figures itself and then issue an attachment for a definite, specified amount, so that the parties and the Postmaster-General may be under no misapprehension.

Failing this, there are apt to be charges of collusion made unnecessarily, as happened in this case without any attempt whatsoever to establish it. Decree-holders, whom it is the duty of the Court to help in securing the fruits of their decrees, are liable to ask for what they are not entitled to if their rights are not made sufficiently clear; and this means waste of time and money for all concerned. The Postmaster-General is also torn between his Manual and the Civil Procedure Code, with which he cannot be very familiar, and between the demands of the decree-holder through the Court and those of the judgment-debtor. Instances of all this are to be found in the record of this case, which is none too well arranged and which I have scrutinized with such help as the bar was able to render. Some of the confusion below seems to have been due to the fact that two or three execution cases were pending in this Court after a transfer from the other Court, with the result that orders that one would expect to find in one case are only to be found in another.

The petitioner is, of course, not particularly interested in the confusion or the misunderstanding of the Postmaster-General. The Court must without any hesitation allow his claim, if it is made out, as against the Postmaster-General under Order 21, Rule 48, Sub-rule (3). But the position is that the attachable proportion of the salary of Lawie was withheld by him in May and June, and that if it was not remitted to the Court, this was because the matter was under correspondence between the Postmaster-General and the Court, and the Postmaster-General was in no way responsible for the order passed by the Court later on at the instance of the other decree-holder that the attachment for these two months should in effect be withdrawn and the moneys withheld from Lawie in these months returned to the judgment-debtor. What weakens the petitioner''s position still further is the fact (already referred to) that when the attachment at the instance of the other decree-holder was, so to say, extended or renewed for the months of July and August, the petitioner took his share of the money. He can therefore hardly be heard to say that there was no attachment subsisting in these months. It must accordingly be held that any attachment at his instance was actually inadmissible in these months. This is, therefore, not a case where the Postmaster-General could (as we now know the facts) be said wrongfully to have returned the writ of attachment taken out by the petitioner. There was no reason why the Court should not have replied to his enquiry of 28th May before 12th June, when the ''petitioner''s writ of attachment; was issued to him.

In returning the writ he showed the previous attachment; and he earried out the orders of the Court in paying the judgment-debtor and making deductions from his pay in July and August. Taking all the circumstances into account, I am not satisfied that this is a case for interference in revision.

The application is accordingly dismissed.