Ram Singh vs Savitri Dev and Others

H.S. Bedi, J.—The present petition is directed against the order of the Subordinate Judge 1st Class, Nabha, dated October, 22, 1991, whereby the application of respondent Savitri Devi for being allowed to sue the respondents in forma pauperis, has been accepted.

The facts, relevant for the disposal of this case are that on November 1, 1986, Mohan Lal deceased, i.e. husband of Savitri Devi and father of Sukhi Chand plaintiff No. 2 was murdered by the respondents. The Sessions Judge, Patiala, convicted the accused but it is stated by Mr. D.V. Sharma learned counsel for the respondents that in appeal, the High Court giving the benefit of doubt to them, upset the judgment of the trial Court and acquitted the accused. Savitri Devi and her minor son, in the meantime, filed a suit for the recovery of Rs. 2,20,800/- as compensation for the death of Mohan Lal and it was in this suit, that the application under Order 33 of the CPC was made. The trial Court examined the matter in the light of the evidence adduced by the parties and recorded a finding, basing itself primarily on the report of the Collector that Savitri Devi did not possess any moveable or Immovable property except the one residential house. With respect to some of the amounts which had been received by her on account of the death of Mohan Lal and reflected in the Bank statement Ex. RW-4/A, it was held that they being in the nature of pensionary benefits, death-cum-retirement gratuity etc., could not be attached in view of the provisions of Order 33 Rule 1 read with Section 60 Clauses (g) and (k) of the Code.

I have heard the learned counsel for the parties and find no merit in this petition.

Order 33 Rule 1 of the CPC provides that a suit in the nature of forma pauperis is maintainable subject to certain conditions. Explanation -I to Rule 1 defines as to what is 60 of the Code were to be excluded. He has then referred to sub-clauses (g) and (k) to Section 60, which are quoted below :-

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

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(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, (1925) (19 of 1925), for the time being applied in so far as they are declared by the said Act not to be liable to attachment;"

Applying the aforesaid provisions of the CPC to the facts of the present case, it is clear that the stand of the learned counsel for the respondents that the amounts received by Savitri Devi on account of death of her husband i.e. his pensionary benefits, death-cum-gratuity, provident fund, are not subject to attachment, and therefore, had to be excluded in determining her net worth in terms of Order 33 Rule 1 of the Code. If these amounts are excluded, Savitri Devi is admittedly, as indigent person.

For the reasons recorded above, there is no merit in the petition and the same is dismissed with no orders as to costs.

The parties are directed to appear before the trial Court on 25th November, 1993 for further proceedings.