K.B. Vijayan v. Ramesh Kumar V

**'CR'** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** **OP(C).No. 1947 of 2018** **AGAINST THE ORDER/JUDGMENT IN EP 86/2015 of SUB COURT, PATHANAMTHITTA DATED 25-05-2018** ## **PETITIONER/PETITIONER/DECREE HOLDER:** **K.B.VIJAYAN AGED 63 YEARS S/O.BHASKARAN, PUTHENPURACKAL HOSUE, CHINNAR P.O., KATTAPPANA-685501** **BY ADVS. DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SRI.JOY C. PAUL SRI.KURIAKOSE MATHEW SRI.P.A.SAINUDEEN** ## **RESPONDENT/RESPONDENT/JUDGMENT DEBTOR:** **RAMESH KUMAR V** **VALLAMUKKANDIYAL HOUSE, KOTTA P.O., KIDANGANNOOR, PATHANAMTHITTA.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.1.2019, THE COURT ON 21.01.2019, PASSED THE FOLLOWING:** O.P.(C) No.1947/2018 2 ## **'CR'** ## **T.V.ANILKUMAR, J. --------------------------------O.P.(C) No.1947 of 2018 ---------------------------------Dated this the 21[st] day of January 2019** ## **JUDGMENT** The sole question arising in this O.P. filed under Article 227 of the Constitution of India is whether the monthly allowances of salary drawn by an employee of Life Insurance Corporation of India are exempt from attachment in execution of money decree passed against him by a civil court. 2. The decree holder who obtained a compromise decree dated 6.2.2014 against the judgment debtor sought to attach a sum of ` 28,856/- from his salary in E.P.No.86/2015 on the file of Sub Court, Pathanamthitta. The judgment debtor is employed as a Development Officer in the branch of LIC of India, Chengannur. His gross emoluments per month amount to `74,283/-. The monthly allowances drawn by him fall under three heads, namely, Dearness Allowance (`21,837/-), House Rent Allowance (`3,404/-) and fixed allowance (`360/-) and they together form an aggregate amount of `25,601/-. O.P.(C) No.1947/2018 3 The pay particulars of the judgment debtor show that net salary drawn is exclusive of the monthly deductions towards court attachment (`7,000/-), contribution to Provident Fund (`4,864/-) and insurance premium (`92/-). The decree holder while quantifying the attachable portion excluded these monthly deductions also from the gross salary. 3. The judgment debtor does not seem to have contested the execution proceeding before the lower court. The court below has taken a view that the allowances of salary drawn by the judgment debtor are exempt from attachment and dismissed E.A.No.52/2018 for attachment of salary by an order passed on 25.5.2018. It also refused to order attachment of any amount from the salary, as according to it, no portion liable to attachment was left thereafter on account of the periodic deductions. 4. The decree holder being aggrieved, challenges the order dated 25.5.2018 in this proceeding. 5. In this proceeding also, respondent/judgment debtor did not appear and contest. Accordingly, the learned counsel for the petitioner/the decree holder alone was heard. 6. Salary of an employee sought to be attached in execution of a money decree against him is neither wholly attachable nor wholly O.P.(C) No.1947/2018 4 exemptible under law. The permissible limit of salary liable to attachment under law is determined and fixed with reference to certain parameters delineated in Section 60 (1) of the Code of Civil Procedure (for short 'the Code'). The maximum amount of salary liable to attachment, the classes of persons and the categories of allowances exempt from attachment are mentioned in Section 60 (1) (i),(l) and (o) r/w explanation II of the Code. ## 7. These provisions are extracted below; _“Section 60(1)(i) :- salary to the extent of [the first] [[one thousand rupees] and two-thirds of the remainder]] [in execution of any decree other than a decree for maintenance:]_ _…..........x........x..........x..............x_ _Section 60(1) (l) any allowance forming part of the emoluments of any [servant of the Government] or of any servant of a railway company or local authority which the [appropriate Government] may, by notification in the Official Gazette, declare to be exempt from attachment, and any subsistence grant or allowance made to [any such servant] while under suspension;]._ _…...........x..........................x......................x_ _Section 60(1) (o) any allowance declared by [any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and_ _….........x.............x..............x_ _[Explanation II-- In clauses (i) and (ia), “salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause(l), derived by a person from his employment whether on duty or on leave.]_ O.P.(C) No.1947/2018 5 Section 60 (1) of the Code envisages that in the case of execution of a decree for money other than maintenance, the portion available for attachment shall be limited to the one third of the remainder available after initial deduction of `1,000/- from the salary of judgment debtor. The identification of the one third shall ordinarily be made with reference to the total emoluments drawn by the judgment debtor. But this is subject to an exception provided in Explanation II to Section 60(1). That means, when the allowances of the salary drawn by the judgment debtor are those exempt by virtue of notification issued by appropriate Government as provided in Section 60(1) (l), the portion of salary liable to attachment shall be computed only with respect to the remainder salary after excluding the exempted allowances under law. This does not mean that consideration of gross salary for the purpose is not relevant at all under any circumstance for calculating the attachable portion. The gross salary of the judgment debtor certainly becomes relevant for computation of attachable portion only when no part of it includes allowances exempt from attachment. Once the attachable portion is ascertained in compliance with the above clauses, the scheme of the Section 60(1) does not seem to envisage any further deductions from the salary of the judgment O.P.(C) No.1947/2018 6 debtor. 8. The crucial question before me is as to whether the monthly allowances drawn by the respondent, a Development Officer in LIC of India are exempt from attachment. Going by Section 60(1) (o) of the Code, the respondent can seldom seek exemption unless he could fall back upon any law, regulation or notification declaring the allowances drawn by him to be exempt from attachment. Section 60 (1) (l) refers to power of appropriate Government to issue notification exempting allowances of certain classes of employees from attachment. In my view, the benefit of exemption intended to be granted by clause (l) through issue of notification, cannot be claimed by any other class of persons than those in the service of Government or Railway Company or local authority. 9. An employee of LIC of India can hardly be placed in any of the categories of employees in clause (l) nor can LIC be reckoned as a Government establishment. Nationalised bank was held to be not a Government establishment in one of the decisions of the Kerala High Court in _**Bharath Bankers** v._ _**Rajendran [1984 KLT 335**_ ). Analogous legal position, in my view, must apply in the case of LIC also. In as much as a judgment debtor cannot be reckoned as a person fulfilling O.P.(C) No.1947/2018 7 the status of an employee of any of the institutions described in clause (l), power of appropriate Government to issue a notification benefiting different classes of employees outside the clause (l) is open to doubt. Anyhow, no notification or law exempting monthly allowances drawn by an employee of LIC nor any law conferring the benefit of such exemption on such employee in terms of clause (l) or (o) was brought to my notice. The only notification which came to my notice as issued by appropriate Government under clause (l) is one referred to in one of the decisions of the High Court of Kerala in _**Kousalya Devi** v._ _**Praveen Bankers [1979 KHC 383]**_ . That appears to be a notification issued by Government of India conferring benefit of exemption exclusively on Central Government employees. Dearness Allowance, House Rent allowance, City Compensatory Allowance are a few of them declared to be immune from attachment by the said notification. This decision was reiterated in _**Sasidharan** v._ _**K.C.T.S.S. Sangam [(1994) KHC 105**_ ] also by another learned Single Judge of this Court. I have my own doubt whether benefit of this notification could be claimed by the employees of the State Government also. Anyway, I am not deciding that question since it does not arise for consideration in this proceeding. O.P.(C) No.1947/2018 8 10. The learned Judge while passing the impugned order seems to have fallen to a mistaken general impression that Dearness and House Rent Allowances of the employees are always immune from attachment indiscriminately irrespective of the category of the institutions adverted to in Section 60 (1) (l) of the Code. This is clearly wrong in view of the discussion of law made by me above and therefore, I hold that the impugned order inevitably requires interference. 11. I must also say, that the formula adopted by the petitioner for computing the attachable portion of salary itself is wrong and contrary to the parameters provided in Section 60(1). The attachable one third in the present case was sought to rest exclusively on the basic pay (`48,635/-) in lieu of the gross salary despite the allowances being immune from attachment. This calculation appears to be against his own interest. The calculation based on gross salary ought to be departed from only in cases where exemptible allowances declared by law also become part of it as already discussed by me above. Adopting an erroneous calculation in another respect also as below, the petitioner put himself again to disadvantage. This too, is against the parameters set out in Section 60(1) of the court for calculating the O.P.(C) No.1947/2018 9 attachable portion of salary. He has deducted monthly subscriptions made towards the contribution to the Provident Fund and insurance policy. 12. It needs to be underlined that once attachable portion of salary is determined and fixed with reference to the guidelines in Section 60(1) clauses (i) (l) (o) r/w explanation II, the scheme of the Section does not seem to visualise any more deduction from remainder salary. The deductions referable to clauses (k) (ka)(kk) do not attach to the monthly subscriptions payable to Provident Fund or insurance policies etc. as held in series of decisions of the High Court of Kerala and finally reiterated in _**Sunil Kumar Vs. Sreeja [(2018) (1) KLT 845]**_ . Therefore, the exclusion of monthly subscriptions made towards provident fund and insurance policies by the respondent is contrary to law. But deduction of `7,000/- made towards attachment order of the court, however, stands on a different footing and was rightly excluded by the petitioner. In short, the formula adopted by the petitioner for fixing the attachable portion of salary cannot be legally sustained. 13. Applying the precise formula in terms of the scheme of Section 60(1), I am satisfied that there is sufficient amount available in O.P.(C) No.1947/2018 10 the salary of respondent for attachment after excluding the deduction made towards court attachment. The impugned order of the court below in the circumstances is illegal, unsustainable and liable to be set aside. The portion of salary of respondent available for attachment has to be worked out and fixed by court below with reference to the principles indicated above and for this purpose the matter has to go back to the lower court. In the result, the order on E.A.No.52/2018 on the file of the Sub court, Pathanamthitta is set aside and that court is directed to dispose of E.A.No.52/2018 in accordance with law after giving notice to the respondent and hearing him also. **Sd/T.V.ANILKUMAR, JUDGE** al/- O.P.(C) No.1947/2018 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1PHOTOCOPY OF THE DECREE DATED 23/8/2014 IN OS NO.7/2014 BEFORE THE COURT OF SUB JUDGE, KATTAPPANA** - **EXHIBIT P2TRUE COPY OF THE AFFIDAVIT AND PETITION BEARING EA NO.52/2018 IN EP NO.86/2015 UNDER SECTION 60 AND 61 OF CIVIL PROCEDURE CODE READ WITH ORDER 21 RULE 48 FIELD BEFORE COURT OF SUBORDINATE JUDGE, PATHANAMTHITTA.** - **EXHIBIT P3CERTIFIED COPY OF THE ORDER DATED 25/5/2018 IN EA NO.52/2018 IN EP NO.86/2015 BEFORE THE COURT OF SUBORDINATE JUDGE, PATHANAMTHITTA** **EXHIBIT P4PHOTOCOPY OF THE REPORTED JUDGMENT IN SUNILKUMAR VS. SREEJAMOL, REPORTED IN 2018(1) KLT 845.** RESPONDENTS EXHIBITS : NIL TRUE COPY P.S TO JUDGE AL/-