Smt. Saroja Sukumaran vs R. Padmanaban

R.S. Ramanathan

The first defendant in O.S. No. 8177 of 2011 is the revision petitioner. The respondent filed the suit for recovery of a sum of Rs. 7,47,600/= on

the promissory note executed by the petitioner herein and also filed application under Order XXXVIII Rule 5 of the CPC to attach the terminal

benefits of the revision petitioner and that application was partly allowed by ordering attachment of Rs. 3,50,000/= from the retirement benefits of

the revision petitioner. This order is challenged in this revision.

It is submitted by the learned counsel for the petitioner that as per proviso (g) and (k) to section 60, the stipends and gratuities allowed to

pensioners of the Government and all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925

applies are exempted from attachment. He, therefore, submitted that when the gratuity, provident fund and other compulsory deposits are

exempted from attachment, the court below erred in attaching Rs. 3,50,000/= on the basis of the concession or admission made by the counsel

who appeared before the court below for the revision petitioner herein. He further submitted that as per section 60(1A), an agreement by which a

person agrees to waive the benefit of an exemption under the section shall be void and therefore, even assuming that the counsel who appeared

before the court below for the revision petitioner acceded to attach a sum of Rs. 2,60,000/= from the terminal benefits, that concession is not valid

and no attachment can be made in respect of gratuity, provident fund and other terminal benefits. He further relied upon the judgment reported in

Radhey Shyam Gupta Vs. Punjab National Bank and Another, ANNIS ANANDHI & OTHERS v. KANAGA & ANOTHER (2009-3-LW

369) and LAKSHMI NARAYANAN v. VEERARAGHAVALU (1990(I) MLJ 138) in support of his contention.

On the other hand, the learned counsel for the respondent submitted that the suit is posted for judgment and therefore, the case may be taken up

after a week. He further submitted that even in the counter filed by the revision petitioner, she admitted her liability to the extent of Rs. 2,60,000/=

and considering the same and also considering the submission of the learned counsel appearing for the revision petitioner before the court below,

the court below has passed the order of attachment to the tune of Rs. 3,50,000/= and therefore, there is no need to interfere with the order of the

court below at this stage.

Learned counsel for the revision petitioner further submitted that by reason of the attachment order passed by the court below, the Joint

Director, Stationery and Printing issued a letter stating that a sum of Rs. 3,50,000/= is retained from the gratuity amount payable to the revision

petitioner and that would also prove that the respondent/plaintiff is seeking attachment of the gratuity amount which is not permissible under law.

According to me, the court below has committed a serious error in ordering attachment on the basis of the alleged concession made by the

counsel appearing for the revision petitioner and also on the basis of the admission of liability by the revision petitioner. Even though in the counter,

the revision petitioner has admitted that she owes only Rs. 2,60,000/= against the claim made by the respondent, considering the provisions of

60(1) proviso (g) and (k) and section 60(1A) of the Code of Civil Procedure, the terminal benefits viz., gratuity and Provident Fund amounts

cannot be attached in view the judgment reported in 1990 (I) MLJ 138) wherein this court has held that even in the case of an employee giving an

undertaking to waive the benefit of an exemption, that undertaking shall be void having regard to the provisions of section 60(1A) of the Code of

Civil Procedure. Further, as per the judgment reported in Radhey Shyam Gupta Vs. Punjab National Bank and Another, the Provident Fund

amount cannot be attached and the same principle is reiterated in the judgment reported in 2009-3-LW 369.

Further, the respondent has not stated in his petition the details of the terminal benefits and in the absence of any details, it cannot be stated that

the amount of Rs. 3,50,000/= can be attached. Further, as per the letter of the Joint Director of the Stationery and Printing dated 29.12.2011, a

sum of Rs. 3,50,000/= was attached as per the order of the court below from the gratuity amount which is prohibited under law. Hence, the order

of the court below is liable to be set aside.

In the result, the civil revision petition is allowed. The order of the court below is set aside. No costs. The connected miscellaneous petition is

closed.