Krishan Lal vs Chandi Parshad

Gurnam Singh, J.—The Civil Revision is directed against the order of Sub-Judge II Class Kurukshetra dated 3rd March, 1977 vide which, the application of the judgment-debtor-petitioner that his salary, which was less than Rs. 400/- per month was not attachable under the provisions of law, has been rejected and an order for attaching his salary in accordance with the provisions of CPC has been ordered to be issued. The respondent or his counsel is not present. Therefore, this order will be ex-parte order against the respondent.

The main ground on which the application of the judgment-debtor was rejected is that the amended CPC was not applicable to the controversy in question, as the same is not retrospective in nature.

From the persual of the order under revision, it is apparent that earlier to the date of the impugned order, no attachment could be issued, as process-fee was not filed. The attachment was ordered to be issued on 3rd March, 1977 CPC (Amendment Act No. 104 of 1976) came into force on February 1, 1977. u/s 97 (g) in Chapter of the amending Act of the CPC under the heading Repeal and Savings, it has been provided that the provisions of section 60 of the CPC as amended by section 23 of the Amending Act shall not apply to any attachment made before the commencement of section 23 of the Amending Act. This means that the amended section 60. CPC will apply to the attachments made after the commencement of the Amending Act, i.e. February 1, 1977. In Sheo Baran Singh Vs. Mohan Lal Driver, the salary of the judgment debtor which was above Rs. 100/- but below Rs. 200/- was attached in pursuance of a decree before the amendment of section 60, CPC and after the amendment the judgment debtor applied for exemption from attachment on the ground that the amendment had retrospective effect and as such his salary which fell below the limit of Rs. 400/- fixed by the Amending Act, is to be released and it was held that section 60, Civil Procedure Court as amended did not have any retrospective effect and since the salary was attachable every month after it accrued, after the amendment could not be attached. The attachments made prior to the amendment were, however, held valid.

Thus the salary of the judgment-debtor upto Rs. 400/- could be attached after February I, 1977. In the application the judgment-debtor has averred that his basic pay was less than Rs. 400/- per month. This contention of his was not controverted by the decree holder. Thus there is no reason to disbelieve the judgment-debtor that his basic pay was less than Rs. 400/-. Any allowances allowed to the judgment debtor by the Government which are allowed for specific purposes cannot constitute the basic pay of a man as held in Lakshmi Narain v. Man Singh (1972)74 P.L.R.D. 211.

The order passed by the Sub-Judge for issuing war ants for the attachment of the salary of the judgment debtor-petitioner is, therefore, not legally correct. This petition is, therefore, accepted and the Impugned order is herby set-aside.