I. Lakshmi Narayanan vs A. Veeraraghavalu and Another

Abdul Hadi, J.—C.M.A. No. 1030 of 1989 is against the Order dated 19.10.1989 passed in I.A. No. 12157 of 1989 in O.S. No. 5733 of

1989 on the file of the IV Assistant Judge, City Civil Court, Madras, dismissing the said I.A. C.M.A. No. 1031 of 1989 is also against the

dismissal Order passed on the same date in I.A. No. 19791 of 1989 in the same suit. These C.M.As. are filed by the plaintiff in the suit and the

suit is for recovery of a sum of money said to have been lent by the plaintiff to the defendant under a promissory note. The former I.A. was to issue

an order of interim injunction, restraining the garnishee, the second respondent in the said I.A., from paying a sum of Rs. 36,575 with interest to the

defendant - Ist respondent therein, pending disposal of the suit. The latter I.A. is for directing the said garnishee to deposit the said sum into the

trial Court. Admittedly, the said sum represents certain retirement benefits of the defendant, who was working as an employee under the said

garnishee. The affidavit in support of the I.As. in the court below, stated that the defendant was going to retire on 30.6.1989 and that he had given

a written undertaking in the said promissory note itself that he would repay the amount due under the promissory note from out of the said

retirement benefits. The Court below has dismissed each of these two I.As. by two separate orders. The reasoning is that the abovesaid retirement

benefits cannot be attached u/s 60 of C.P.C. and that hence the injunction and direction sought for under Order 39 and Section 151, C.P.C.

cannot be granted. Against the said two orders, the abovesaid respective two C.M.As. have been filed.

I do not find any error in the order of the Court below. Admittedly, the said retirement benefits fall under the Proviso to Section 60(1) of C.P.C.

which enumerates the properties which cannot be attached. The learned Counsel for the appellant no doubt contended that Section 60 of C.P.C.

would apply only in the case of attachment ''in execution of decree'' and not when the suit is pending and has not resulted in a ''decree''. But, this

contention has no merit in view of Order 38, Rule 11-A of C.P.C. which says,

The provisions of this Code applicable to an attachment made in execution of a decree shall so far as may be, apply to an attachment made before

judgment which continues after the judgment by virtue of the provisions of Rule 11.

The said Rule 11 says,

Where property is under attachment by virtue of the provisions of this Order and decree is subsequently passed in favour of the plaintiff, it shall not

be necessary upon an application for execution of such decree to apply for a re-attachment of the property.

This Order 38, Rule 11-A was introduced in 1976, by an amendment of C.P.C. in 1976.

The learned Counsel no doubt cited the decision reported in State of Punjab and Another Vs. Dina Nath, But that decision has no application to

the present case. That decision arose under the Punjab Land Revenue Act and the Court held that Section 60 of C.P.C. is not applicable to the

order for recovery passed under the said Act, since it is not ''decree'' within the meaning of that term under C.P.C. In the present case, in view of

Order 38, Rule 11-A, C.P.C, Section 60 C.P.C. will certainly be applicable to attachment before judgment i.e. even though the suit has not yet

resulted in a ''decree'' as such.

The learned Counsel for the appellant then submitted that what was sought for was only an injunction under Order 39 of C.P.C. and not an

attachment under Order 38, Rule 5 of C.P.C. But the injunction or the direction sought for amounts only to an attachment of a debt due to the

defendant employee from his employer, the garnishee, by an issue of a prohibitory order, to the garnishee, as in the case under Order 21, Rule

46(1), C.P.C. which provides the mode of ''attachment'' of debts and other properties not in possession of judgment-debtor, the said mode being

issue of such prohibitory Orders.

Further, the injunction under Order 39, Rule 1, or Rule 2 of C.P.C. is a discretionary relief and where the property cannot be attached as stated

above, the injunction under Order 39, Rule 1 or Rule 2 of C.P.C. cannot be granted restraining the actual possessor of the said property of the

defendant from giving that property to the defendant. The object with which Section 60(1), Proviso, is enacted cannot be frustrated by resorting to

Order 39.

It has also been held that the issue of injunction either under Order 39, or Section 151 C.P.C., should neither conflict with the express

provisions of the Code nor go against the intentions of the Legislature. (Vide the decision of the Supreme Court in Manoharlal Chora v. Rai

Bahadur Rao Raja Seth Hiralal (1962)1 S.C.R. (Supp) 450 and the decision of this Court in Unnamalai Achi and Another Vs. Umayal Achi and

Others, .

The learned Counsel however submitted that the defendant has given a written undertaking in the promissory note itself that he would pay back

the amount due under the promissory note from out of the abovesaid retirement benefits and that hence the injunction should be granted. But

Section 60(1A) of C.P.C. specifically states as follows:

Notwithstanding anything contained in any other law for the time being inforce, an agreement by which a person agrees to waive the benefit of any

exemption under this section shall be void.

So, the undertaking given according to this Sub-section (1A) will have no effect in considering whether attachment of the said retirement benefits

could be made.

Therefore, there is no merit in these two C.M.As. Hence I am not admitting the same and they are dismissed.