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Judgment
Y.V. Narayana, J.—This revision is preferred against the decree and order dated 19-7-1997 passed in E.P. No. 107 of 1995 in O.S. No. 495 of 1987 on the file of I Addl. District Munsif''s Court, Tanuku.
The Judgment-debtor is the revision petitioner. The respondent-decree holder filed the E.P. under Order XXI Rule 37 C.P.C. for the arrest of the Judgment-debtor. It seems, the decree holder previously filed E.P. Nos. 153 of 1988, 102 of 1990 and 113 of 1994 and realised certain amount that was due under the decree which was obtained by him. Still a sum of Rs. 8,500/- is found due to him. Therefore, he filed the present E.P. The Judgment-debtor is an employee in Andhra Sugars Limited and is drawing a sum of Rs. 3,600/ - towards his salary. While so, the judgment-debtor resisted the present E.P. contending that his salary was under attachment continuously for 24 months in E.P. No. 102 of 1990 and as per the provisions of Section 60 C.P.C., his salary cannot be attached again in the present E.P.
On a consideration of the arguments advanced on either side and the evidence that was adduced on record, the Court below rejected the contention of the J.Dr. and consequently allowed the E.P. Hence, the revision.
The very same contention which was raised before the Court below is raised before this Court also on behalf of the Judgment debtor. It is contended that when there is a bar u/s 60 C.P.C. for again attaching the salary of the judgment debtor after 24 months of attachment on the previous occasion, the decree holder cannot proceed against him now. In support of his contention, learned Counsel placed strong reliance upon the judgment of Calcutta High Court in Kashi Prosad Agarwalla Vs. A.A. D''Cruz, . Paragraph 6 which is relevant for our present purpose is extracted below:
"The bar on an attachment to the extent as laid down in Section 60 of the Code of Civil Procedure, in any event, so far as it relates to the salary of public officer, or of any servant of the Railway Company or of local authority is based on grounds of public policy. That being so, no execution can be levied in respect of such salary. If exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost. Hence it would be an improper use of that equitable remedy to employ it to avoid a very definite bar created by statute law to achieving the very object for which the receiver is appointed. Therefore where the salary of the judgment-debtor having been in continued attachment under a decree for 24 months has become finally exempted from attachment in execution of that decree, the decree-holder cannot be allowed to execute the decree and reach the salary in execution by appointment of a receiver by way of equitable execution."
It is seen that u/s 51 of the Code, the executing Court is duty bound to execute a decree through any one of the modes that are prescribed therein. Insofar as the attachment of any property is concerned, Section 60 of the Code exempted certain properties from attachment. Clause (i) of the proviso to sub-section (1) of Section 60, which is relevant for the purpose of the case on hand, exempted ''salary'' to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance from attachment. The proviso to clause (i) is extracted below:
"Provided that where any part of such portion of the salary as is liable to attachment has been under attachment whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree."
Thus, the second limb of the proviso to clause (i) is crystal-clear in saying that the salary which was under attachment in execution of one and the same decree for a continuous period of 24 months will be finally exempt from attachment thereafter in execution of the very same decree. In other words, after attaching the salary of a particular Judgment-debtor for 24 months, the executing Court cannot again order the salary disbursing officer of the employer under whom the judgment-debtor is working either to withhold any part of the salary of the Judgment-debtor or to remit the same in discharge of the very same decretal debt (under Order XXI Rule 48-A C.P.C.). The above is based on a public policy which was evolved so as to safeguard the interest of the judgment-debtors and to relieve them from the burden of continuous attachment of their take-home salary. This is exactly what was laid down in the decision of the Calcutta High Court. But, an exemption of a particular property under the provisions of Section 60 of the Code cannot be understood to mean that the rights of a decree holder to execute and realise the decretal debt stands automatically extinguished and the judgment-debtor''s liability to pay the remaining decretal debt abruptly comes to a grinding halt. In fact, it is never the intention of the Code. When once a debt is contracted, the debtor is bound to repay the same with interest and he is bound to repay even the last pie of the debt and till then it cannot be said that the debt is discharged. Till such time the entire decretal debt is realised, the decree holder is entitled to execute the decree through the process of the Court. Section 51 is introduced for this purpose only. As already observed, Section 51 indicated certain modes for execution of a decree and the decree- holder is free to choose any one of those modes. If the decree could not be executed for one reason or the other through one of the modes that is chosen by the decree holder, he is entitled to proceed against the judgment debtor through the other modes that are available to him under law. In this case, the E.P. was filed under Order XXI Rule 37 C.P.C., for the arrest of the J.Dr. which is ancillary to Section 51 C.P.C. Clause (b) of the Proviso to Section 51 clearly mandates that if the executing Court is satisfied, after giving notice and opportunity of hearing to the J.Dr., that the Judgment debtor is having sufficient means to pay the decretal debt and refuses or neglects or has refused or neglected to pay the same, the Court can issue warrant for arrest and detention of the judgment debtor in Civil prison for realisation of the money due under the decree. Therefore, merely because the salary of the judgment debtor is exempt under Clause (i) of the proviso to Section 60(1) C.P.C, it cannot be deemed that the said exemption is absolute and the decree debt stands discharged. Therefore, in an application filed "under Order XXI Rule 37 C.P.C, what the executing Court should see is whether the Judgment debtor is having means and whether he has evaded payment of the decretal debt. If the Court, after enquiry, comes to the conclusion that the judgment debtor wilfully evaded payment of the decretal debt having sufficient means, the Court is entitled to issue a warrant of arrest irrespective of the exemption in Section 60 C.P.C. In this case, the judgment-debtor is allegedly drawing a monthly salary of Rs. 3,600/-. No doubt, the same is exempt under clause (i) of the proviso to Section 60(1) C.P.C. and the same cannot be attached, but, as held by the Bombay High Court in Pralhad Gangadhar Joshi Vs. Sakhubai, , the amount of salary which the judgment debtor has already received can be taken into account in judging his means u/s 51 C.P.C. because it was no longer salary after receipt by him and therefore no longer subject to the bar against attachment or sale. My view in this regard is further fortified by the decision of the Madras High Court in Gnanasiromani Nadar Vs. Nedungadi Bank Ltd., , which is binding on me. The relevant paragraph is extracted below:
"After the amount of the pension has been paid over to the pensioner, the amount ceases to be exempt from attachment u/s 11, Pensions Act and therefore the amount of pension which is payable month by month to the pensioner cannot be left out of account in considering whether u/s 51(b) and the Explanation, the pensioner-judgment debtor has the means to pay the amount of the decree or a substantial portion thereof."
There is one more decision of the Supreme Court in The Union of India (UOI) Vs. Hira Devi and Another, wherein it was held that arrears of salary can be attached. In view of the above decisions and for the foregoing reasons, I am of the opinion that the executing Court is entitled to proceed against the salary in the hands of the judgment debtor, in an application under Order XXI Rule 37 C.P.C. even if such salary is exempt under Clause (i) of proviso to Section 60(1), provided the decree holder is able to establish that the judgment debtor is having sufficient means to discharge the decretal debt and he has evaded to pay the same. The Calcutta High Court in Kashi Prosad''s case (supra), only read Section 60 C.P.C. in isolation and delivered the judgment. It did not examine the issue by reading Section 60 together with Section 51 of the Code, which is the main provision which empowered the Court to enforce a decree. Therefore, I am not inclined to follow the decision of the Calcutta High Court as the same was not rendered in a right perspective.
When coming to the case on hand, the Court below simply allowed the E.P. without conducting an enquiry as to the means of the judgment debtor as required under the provisions of Section 51 and Order 21 Rule 37 C.P.C. Therefore, the order of the Court below allowing the E.P. needs to be set aside as the same is passed by improper exercise of the jurisdiction which is vested in it.
In the result, the order under revision is set aside and the matter is remitted back to the Court below with a direction to conduct an enquiry afresh, ascertain the means of the Judgment-debtor as indicated above and pass appropriate orders in accordance with law. The C.R.P. is disposed of accordingly. No costs.