D. Padma and Others vs Faruddin Khan and Another

M.F. Saldanha, J.—These two Civil Revision Petitions involve a very interesting point of law which can briefly be summarised in the following proposition:

Whether the embargo contained in Section 60 of the C.P.C. with regard to immunity from attachment in respect of certain categories of property does hold good even when the judgment debtor has died and the legal heirs step into the picture. Conversely, whether the immunity from attachment that is conferred on these categories of property would fail to hold good when the property comes into the hands of the legal heirs.

The facts of this case are briefly that the petitioners are the wife and minor children of the original defendant to a suit for recovery of money. The original plaintiff who is the respondent before me was a Money Lender and defendant, a Government Employee had incurred certain debts with him in respect of which the recovery proceedings had been instituted. The decree in question came to be passed against the defendant, after which he died and the execution proceedings have been instituted for recovery of a sum of Rs. 11,300/- against the wife and minor children. The judgment-debtor did not possess any tangible property which could be attached in satisfaction of the decree and it is for this reason that an attachment came to be levied on the gratuity amount that was due to the credit of the deceased. At this stage, an application was filed before the Executing Court contending that by virtue of the provisions or Section 60(g) of the C.P.C. that the amount in question which represented the greater part of the gratuity payable to the deceased employee was exempt from attachment. It would be useful to reproduce the provisions of Section 60(g) which read as follows:

"Stipends and gratuities allowed to pensioners of the Government or a local authority or of any other employer or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions;"

The Trial Court heard the parties and rejected the application principally because the Court upheld the two contentions raised on behalf of the applicant-plaintiff; the first being that the exemption only applies in respect of amounts payable to "Pensioners" and that in the present case the respondents, before the Court were not the pensioners but his legal heirs, and secondly, that the amounts which were exempt from attachment were only those amounts which could come within the categories defined in Section 60(g) and that once it is traded as a amount in the hands of the legal heirs, that it ceases to answer to the definition of gratuity. It is against this order that the present Civil Revision Petitions have been preferred.

The petitioners learned advocate has presented a very short dear cut challenge to the correctness of the order. He points out that there is no dispute about the nature of the funds that have been attached in so far as admittedly they come within the head of the gratuity payable to the deceased. He states that Section 60(g) clearly prohibits such amounts being attached and it is his further submission that this bar will apply irrespective of whether the amount is still with the authority or for that matter whether it has been already handed over to the pensioner. His further submission is that merely because the money has physically changed hands and is in the custody of the legal heirs, that it will make no difference in so far as the restriction will still apply. The contention therefore is that the attachment is bad and that the order of the Trial Court requires interference with.

This position has been very seriously disputed by the respondents learned advocate. His first, contention is that Section 52 of the C.P.C. dearly provides for a situation where a decree passed against even a legal representative is executable against the property of the deceased-judgment debtor. It is his contention that the Trial Court has very rightly taken cognizance of this aspect of the matter while granting the attachment order. He submits that the provisions of Section 60 cannot be construed in such a manner as to either interfere with or override or for that matter nullify the provisions of Section 52. Learned advocate points out to me that the governing clause of Section 60(g) refers to amounts "allowed to pensioners" and that it would be doing violence to the Section if the Court were to read in any further words or expressions thereto. His contention is that the term "Pensioners" has to be strictly construed and that it would therefore preclude the legal heirs in so far as the immunity can only be claimed by a pensioner during his lifetime. Elaborating on this argument, the learned Advocate submitted that the special benefit that enures to a pensioner cannot be extended to the legal representatives as in terms of money, the amount that is lying to the credit with the authority completely changes complexion once the legal heirs come into the picture and the learned Advocate submits that this amount would virtually be on par with any other money or assets that the deceased may have possessed and is therefore not to be equated or treated as being synonyms with gratuity. He supported the order passed by the Trial Court and contended that no interference is called for with that order. Learned Advocate also submitted that this Court will have to take cognizance of the injustice that would take place if the Section were to be given a wider connotation by pointing out that his client has paid the Court fee and has obtained a decree for realisation of a debt that has been held to be lawfully due to him and in this background, if the Court were to extend the benefit which was limited only to the pensioner himself by the Section, that it would result in rank injustice to one of the parties to the litigation. He therefore submitted that irrespective of which angle the case is viewed from, that the order of the Trial Court should be sustained.

In order to resolve this controversy, it is necessary to first examine as to whether there is any conflict between Sections 52 and 60, in my considered view, there is absolutely no conflict between these Sections. Section 52 does take into account a situation where a decree is passed against the legal representative because the defendant has died during the proceedings and it only stands to reason that such a decree is executable against the property of the deceased. Section GO categories different heads of property which are liable for attachment and sale but it also carves out certain exceptions one of which is the amount of gratuity payable to a pensioner. This provision is analogous to identical provisions in the various other welfare statutes whereunder the legislature has provided for a total immunity from attachment in respect of sums of money that are set aside for providing terminal benefits. To my mind, it is not only permissible but very necessary to incorporate these provisions and an exception to the general rule does not create any conflict because it only excludes certain categories of property from attachment and sale.

The resolution of the dispute more importantly centers around a deeper understanding of the significance behind the exclusion from attachment in respect of all amounts that are set aside for purposes of providing terminal benefits. These sums of money are held in trust by the employer for a very significant and special purpose namely that they should provide the necessary sustenance to the employee on cessation of the tenure of employment. The purpose behind granting the immunity is that irrespective of what debts may be incurred or what liabilities may arise, that the employee should not be left virtually penniless at a stage when his employment is over and it only stands to reason that the legislature thought of a situation where the dependent family members would be virtually orphaned ir there were left with absolutely no financial support. The situation gets even more aggravated if one were to consider a disaster taking place or an untimely death intervening in which situation the dependent family members need increases all the more. It only stands to reason therefore that the protection that is afforded to the pensioner or employee concerned must carry over with equal. If not greater vigour when it comes to the question of the dependent legal heirs. In law, if the dependent legal heirs can be foisted with the same liability as the defendant even though the debts were not incurred by them, it would be irrational to hold that a technical and narrow construction will have to be imparted to the provisions of Section 60(g) of the C.P.C. excluding the legal heirs from the very protection which the employee was entitled to. It is necessary to ensure that the purpose for which this provision was inserted in the statute is achieved and unless the employee is held to include his legal heirs, that purpose would be totally frustrated.

The last part of the controversy gets automatically resolved in so far as if Section 60(g) will have to be considered as including the dependent legal heir, then it would make no difference whether the amount is still with the employer or whether it has already been disbursed to them. I am unable to subscribe to the submission canvassed by the respondents learned Advocate that on the death of the employee the amount changes complexion and no longer continues to be a gratuity amount. The character of that money remains unaltered and this holds good for all purposes including tax purposes. This must necessarily be so because the death of the employee cannot alter the fact that this amount constituted a terminal benefit which would accrue either to the employee or to the legal heirs only when the services come to an end. The real issue is that if the amount could not have been attached as long as it was a gratuity amount payable or paid to the original employee, then the same position will hold good in law even if the employee died or the beneficiaries are the defendant''s legal heirs. One needs to take cognizance of the fact that these are virtually social welfare measure and they are almost in the nature of an insurance which becomes virtually a question of survival if the employee has met with a untimely death as has happened in the present case where the employee died in a motor accident. Under these circumstances, the Section will have to be rationally construed in consonance with the objective that it is required to achieve.

Having regard to the aforesaid position in law, the Trial Court was in error in having held that the amount of Rs. 11,300/- was liable to be attached on the ground that in so far as it must be treated as an amount in the hands of the legal heirs of the judgment debtor, that it did not qualify for immunity for attachment u/s 60(g) C.P.C. The orders are accordingly set aside. The Civil Revision Petitions succeed and stand disposed of. !n the circumstances of the case, there shall be no order as to costs.