R. Balakrishnan vs K. Babu and The Executive Engineer, (Operation and Maintenance) Tamil Nadu Electricity Board

M. Venugopal, J.—The revision petitioner/respondent/defendant has projected this civil revision petition as against the order dated

29.04.2009 in E.P. No. 107 of 2008 in O.S. No. 113 of 2008 passed by the learned District Munsif, Sholingur.

The Executing Court, while passing orders in E.P. No. 107 of 2008 on 29.04.2009, has, inter alia, opined that the respondent/judgment debtor

has not produced the salary slip notwithstanding the fact that he has stated in his counter that he is in receipt of a salary of Rs. 4,000/- and further

that he has not made any endeavour to deposit the decree amount into Court and resultantly, directed the Pay Disbursing Officer/Garnishee of the

respondent to deduct a sum of Rs. 3,500/- per month till the loan is wiped out and to send the same to the Court.

The learned Counsel for the revision petitioner/defendant urges before this Court that the impugned order of the Executing Court in E.P. No.

107 of 2008 dated 29.4.2009 by ordering an attachment of a sum of Rs. 3,500/- per month from the salary of the revision petitioner/Judgment

Debtor as prayed for by the respondent/decree holder is an illegal one inasmuch as the revision petitioner/Judgment Debtor is receiving a salary of

Rs. 4,000/- from the second respondent and when the salary itself is just Rs. 4,000/-, attaching the salary of the petitioner/Judgment Debtor

amounting to Rs. 3,500/- is not permissible in law and moreover, if a sum of Rs. 3,500/- is attached then the revision petitioner/Judgment Debtor

will certainly struggle for food and to fulfill the day to day necessities and attaching the salary of the revision petitioner at the rate of Rs. 3,500/- per

month basing the calculation of the petitioner''s salary as Rs. 12,000/- per month is an erroneous one and therefore, prays for allowing the civil

revision petition in the interest of justice.

In response, the learned Counsel for the first respondent/decree holder contends that the first respondent/decree holder in Execution Petition has

stated that out of the prayer of the respondent/decree holder in requesting the Court to issue a pro-order for recovering a sum of Rs. 3,500/- per

month till the loan is wiped out and to send the same to Court is a fair, just and equitable one inasmuch as the revision petitioner/Judgment Debtor

has to satisfy the exparte decree passed in O.S. No. 113 of 2008 dated 20.06.2008 because of the simple fact that even an exparte decree binds

the revision petitioner/Judgment Debtor till the same is set aside by a Competent Court of Law and moreover, the Execution Petition praying for

salary attachment has been pending before the Executing Court for a period of one year and finally the matter has been heard on 22.04.2009 and

the matter has been posted for orders on 29.04.2009 and finally the order has come to be passed and therefore, there is no infirmity in the order

passed by the Executing Court in ordering the salary attachment and therefore, this Court sitting in revision need not interfered with the same.

In support of his contention that the issuance of pro-order issued by the Executing Court ordering recovery of Rs. 3,500/- per month from the

salary of the first respondent is an illegal one, the learned Counsel for the revision petitioner cites the decision of this Court in S.K. Sabapathi

Mudaliar v. Dhandapani and Anr. 1988 2 L.W. 473 wherein it is held as follows:

Having regard to Explanation-II where the expression ''salary'' for purposes of Clause (i) to the proviso to Sub-section (1) of S.60 C.P.C. has

been stated to mean the total monthly emoluments excluding allowances declared exempt from attachment under the provisions of Clause (1) to the

proviso to Sub-section (1) of S. 60 C.P.C. the deductible items could only be such allowances exempt from attachment and not others. It follows

that the deduction of Rs. 502 from out of the total emoluments received by the first respondent is not in order.

However, the learned Counsel for the first respondent/decree holder has produced the pay certificate dated 07.11.2009 of the revision

petitioner/Judgment Debtor issued by the Executing Court Engineer/O & M of TNEB, Sholinghur to the effect that total pay of the revision

petitioner is Rs. 15,647/- and that after deducting recovery of Rs. 8,231/- towards GPF etc. the net amount received by the revision petitioner

comes to Rs. 7416/-. There is nothing wrong in the Executing Court deducting a sum of Rs. 3,500/- per month till the debt is wiped out. Also the

learned Counsel for the first respondent/decree holder submits that the revision petitioner/Judgment Debtor will get the arrears of pay and

emoluments very shortly.

It is to be noted that the first respondent/decree holder has filed the suit against the revision petitioner/Judgment Debtor praying for the recovery

of a sum of Rs. 89,735/- from the revision petitioner/defendant at 18% per annum from the date of filing of the suit till date of realisation etc. As a

matter of fact, the first respondent/plaintiff has filed a suit against the revision petitioner/Judgment Debtor on the basis of a pronote dated

27.03.2003 executed by the revision petitioner/Judgment Debtor for a sum of Rs. 50,000/- whereby he has agreed to repay the same with interest

at the rate of 24% per annum on demand. In the suit, an exparte decree on 20.06.2008 has been passed by the trial Court. Execution proceedings

have been initiated by the first respondent/decree holder in the month of August 2008 and only on 29.04.2009 the pro-order for effecting salary

attachment has been ordered by the Executing Court.

It is to be borne in mind that the salary is not restricted to emoluments monthly payable but emoluments payable to a person holding permanent

or semi permanent employment.

At this stage, this Court pertinently points out the decision of Hon''ble Supreme Court in The Union of India (UOI) Vs. Hira Devi and Another,

at page 228 wherein it is held as follows:

Salary is not attachable to the extent provided in Clause (i) of Section 60, Civil P.C., but there is no such exemption as regards arrears of salary

and allowance due to the judgment-debtor and such an amount can be proceeded against in execution.

As on date the exparte decree decree obtained in O.S. No. 113 of 2008 on the file of District Munsif, Sholinghur has not been set aside and

the same is alive and is very much in force. Further, the reference made on the side of revision petitioner to the G.O.Ms.1855 Home dated

10.5.1949 is not helpful to the petitioner in the present day context inasmuch as the petitioner is in receipt of take home salary of Rs. 7416/- per

month and moreover, the obligation of the revision petitioner to pay the decretal amount is not obliterated on any score as on date.

Be that as it may, when the total salary of the revision petitioner/Judgment Debtor for the month of October 2009 is Rs. 15,647/- as seen from

the Pay Certificate dated 07.11.2009 signed by the Executive Engineer/O & M, Sholinghur of TNEB and out of Rs. 15,647/- when the recovery

is being made to an extent of Rs. 8231/- then the net amount viz., the take home salary is Rs. 7416/- and therefore, when the take home salary is

Rs. 7416/-, the Executing Court/learned District Munsif, Sholinghur is quite right in ordering the attachment of Rs. 3,500/- per month from the

salary of the revision petitioner/Judgment Debtor and there is no infirmity in the order passed by the Executing Court in this regard and resultantly,

the civil revision petition fails.

In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the Executing Court in

E.P. No. 107 of 2008 is affirmed. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently,

connected miscellaneous petition is closed.