High Court of KeralaDivision Bench2015-10-19The petition is allowed; Ext. P3 set aside; rem...

P. J. Johnson v. Angel Mary Johnson and Regional Manager Central Bank of India

Case / Petition Number:OP(FC).No.449 of 2015 (R)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. K. Abdul Rehim
Mary Joseph
Judgment Date: 2015-10-19
Court Decision / Holding: Original petition allowed; Ext. P3 order set aside; remanded to Family Court to reconsider attachability of pension benefits with opportunity to all parties; fresh decision to be passed within two weeks; till then, the restraining order on pension disbursement remains in force.
Final Disposition: The petition is allowed; Ext. P3 set aside; remand to Family Court for fresh consideration of pension attachability with both sides given an opportunity; decision to be issued within two weeks; restraining order remains in force until fresh orders are passed.

Parties to the Case

Appellants / Petitioners

P. J. Johnson

Respondents

Angel Mary Johnson
Regional Manager Central Bank of India

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathew Skaria
• Sri. Joy Joseph (Mundackal)
• Sri. Tomy Paul Mampilly

Counsels for Respondents

• Sri. Devan Ramachandran
• Sri. K.M. Aneesh
• Sri. K. S. Santhosh Kumar (Kaliyanam)
• Sri. Adarsh Kumar
• Sri. Biju Varghese Abraham
• Sri. Dileep Chandran
• Sri. S. Krishna Kumar (Mangalum)

Case Synopsis & Summary

This High Court of Kerala, sitting in OP (FC) No. 449 of 2015 (R), concerns an application by P. J. Johnson (the petitioner) challenging a Family Court order (Ext. P3) that restrained the disbursement of pensionary benefits due to him and required security to be furnished, in proceedings initiated by his daughter (the 1st respondent) for marriage expenses, maintenance and past maintenance. The Family Court had admitted IA 794/14 restraining the 2nd respondent (Regional Manager, Central Bank of India) from disbursing pension until further orders, with a security requirement of Rs. 25 lakhs, and later passed Ext. P5 directing conditional attachment of immovable property. The petitioner challenged Ext. P3 before this court invoking Article 227 of the Constitution. He argued that pension benefits are generally not attachable under Section 60 of the CPC and are protected by statutory exemptions under the Payment of Gratuity Act and the Provident Fund and Miscellaneous Provisions Act, and he relied on several decisions including Radhey Shyam Gupta. The court found that Ext. P3 did not address the core question of attachability and remanded the matter to the Family Court for a fresh consideration of attachability with both sides given a fair opportunity. The original petition was allowed, Ext. P3 set aside, and a fresh decision directed within two weeks, with the restraining order continuing until then.

Provisions of Law Cited

Article 227 of the Constitution of IndiaSection 60 of the Code of Civil ProcedurePayment of Gratuity ActProvident Fund and Miscellaneous Provisions Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Family Court’s Ext. P3 order restraining disbursal of pensionary benefits is legally unsustainable because pension is generally non-attachable under Section 60 CPC, and statutory exemptions in the Payment of Gratuity Act and the Provident Fund and Miscellaneous Provisions Act protect such benefits. He submits that the Family Court did not address the core question of attachability in OP 398/2014 and that prior decisions (including Radhey Shyam Gupta) support his position. He prays for setting aside Ext. P3 and remanding for a fresh decision with proper notice and opportunity for all parties, so that the pension’s attachability can be determined properly.

Contentions of Respondents

The respondents seek to maintain protective restraint on pension disbursement, arguing that assets should be preserved for satisfaction of the daughter’s maintenance claims and related reliefs. They rely on the Family Court’s order (Ext. P3) and subsequent proceedings that directed security or attachment measures. They contend that attachability must be considered in light of statutory exemptions only after a proper examination of the underlying petitions, and that the interim measures were appropriate to secure the relief sought by the petitioner’s daughter until a final determination is made.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Radhey Shyam Gupta vs. Punjab National Bank and another	2009 (KHC 4050)	Mentioned Only	Cited by the petitioner; the court did not rely on its ratio to dispose of the matter but notes it in reference to the attachability issue.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 19TH DAY OF OCTOBER 2015/27TH ASWINA, 1937 OP (FC).No. 449 of 2015 (R) ---------------------------- IA. 794/2014 IN OP 398/2014 OF THE FAMILY COURT,TRIVANDRUM. PETITIONER(S): 1ST RESPONDENT IN IA -------------------------- P.J.JOHNSON, S/O.JOSEPH AGED 60 YEARS PARASSERIL HOUSE, ERUMAPARA, MELUKAVU VILLAGE NOW RESIDING AT HOUSE NO.29/466A, BHAGAT SINGH ROAD VYTTILA, KOCHI-682 019. BY ADVS.SRI.MATHEW SKARIA SRI.JOY JOSEPH (MUNDACKAL) SRI.TOMY PAUL MAMPILLY ## RESPONDENT(S):PETITIONER & 2ND RESPONDENT IN IA ---------------------------- 1. ANGEL MARY JOHNSON QUARTERS NO.66, TYPE 3, CGO COMPLEX POONKULAM, VELLAYANI P.O. THIRUVANANTHAPURAM-695 531. 2. REGIONAL MANAGER CENTRAL BANK OF INDIA, METRO PALACE NEAR NORTH RAILWAY STATION ERNAKULAM DISTRICT-682 018. R2 BY ADV. SRI.DEVAN RAMACHANDRAN R2 BY ADV. SRI.K.M.ANEESH R2 BY ADV. SRI.K.SANTHOSH KUMAR (KALIYANAM) R2 BY ADV. SRI.ADARSH KUMAR R2 BY ADV. SRI.BIJU VARGHESE ABRAHAM R2 BY ADV. SRI.DILEEP CHANDRAN R1 BY ADV. SRI.S.KRISHNA KUMAR (MANGALAM) THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 1910-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 449 of 2015 (R) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1.TRUE PHOTOCOPY OF THE OP NO.398/2014 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P2.TRUE PHOTOCOPY OF THE IA NO.794/2014 IN OP NO.398/2014 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P3.TRUE PHOTOCOPY OF THE ORDER DATED 9/4/2014 IA NO.794/2014 IN OP NO.398/2014 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P4.TRUE PHOTOCOPY OF THE IA NO.795/2014 IN OP NO.398/2014 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P5.TRUE PHOTOCOPY OF THE ORDER DATED 19/3/2014 ISSUED BY THE SHERISTADAR TO THE AMIN FOR EFFECTING CONDITIONAL ATTACHMENT ORDERED BY THE FAMILY COURT IN IA NO.795/2014. EXT.P6.TRUE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 28/2/2015 FILED BY THE PETITIONER IN OP 398/2014 BEFORE THE FAMILY COURT, THIRUVANANTHPAURAM. EXT.P7.TRUE PHOTOCOPY OF THE LETTER DATED 29/11/2014 ISSUED FROM THE CHIEF MANAGER OF THE CENTRAL BANK OF INDIA TO THE PETITIONER EXT.P8.TRUE PHOTOCOPY OF THE IA NO.359/2015 IN OP NO.398/2014 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P9.TRUE PHOTOCOPY OF THE IA NO.1355/2015 IN OP NO.398/2014 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P10.TRUE PHOTOCOPY OF THE ORDER DATED 27/5/2015 OF THE FAMILY COURT, THIRUVANANTHAPURAM IN IA NO.1355/2015 IN OP NO.398/2014. ## RESPONDENT(S)' EXHIBITS ------------------------------------ NIL TRUE COPY PS TO JUDGE ## C.K.ABDUL REHIM & MARY JOSEPH, JJ. ----------------------------------------OP(FC) No. 449 of 2015 ---------------------------------------Dated this the 19th day of October, 2015 ## JUDGMENT ## Abdul Rehim,J. The petitioner herein is the 1[st] respondent in OP.No.398/2014 on the files of the Family Court, Thiruvananthapuram, which was instituted by the 1[st] respondent herein, who is the daughter of the petitioner. The case was instituted for realising a sum of Rs.23,75,000/- towards marriage expenses, Rs.7500/- per month for maintenance and a sum of Rs.2,70,000/- towards past maintenance for 3 years. Along with the original petition the 1[st] respondent had filed IA.No.794/14 restraining the 2[nd] respondent who is the Regional Manager of the Central Bank of India from disbursing service benefits due to the petitioner, till the disposal of the original petition. The Family Court had passed Ext.P3 order in the said interlocutory application restraining the 2[nd] respondent from disbursing the pensionary benefits, until further orders or until OP(FC).449/2015 2 the petitioner herein furnished security for Rs.25 lakhs to the satisfaction of the Family Court, within 30 days. The petitioner herein was permitted to file objection and the interim application was posted for further orders. It is stated that the 1[st] respondent had filed another application as IA.No.795/14 seeking attachment of the immovable property belonging to the petitioner. The court below had passed Ext.P5 order directing the 1[st] respondent either to furnish security for a sum of Rs.26,45,000/- and to attach immovable property conditionally. Subsequently the petitioner filed IA.No.359/2015 to set aside the order passed restraining the 2[nd] respondent from disbursing the benefits and seeking direction to the 2[nd] respondent to disburse the terminal benefits due to the petitioner. Since the said application filed as Ext.P8 was not considered, the petitioner had also filed IA.No.1355/15 seeking advancement of the posting of the case. But the court below had dismissed the application filed for advancing the case, stating that no oral instruction was issued to the 2[nd] respondent. It is aggrieved by Ext.P3 order of the Family Court which was issued in IA.No.794/14, this original petition is filed invoking jurisdiction vested on this court under OP(FC).449/2015 3 Article 227 of the Constitution of India. 2. Contention of the petitioner is that Ext.P3 order passed by the Family Court restraining the 2[nd] respondent from disbursing pensionary benefits due to the petitioner, is legally unsustainable. It is contended that the pensionary benefits due to the petitioner from the 2[nd] respondent cannot be attached in view of the specific provisions contained under section 60 of the Code of Civil Procedure and also on the basis of the specific bar incorporated in the relevant statutes like, the Payment of Gratuity Act, Provident Fund and Miscellaneous Provisions Act . It is pointed out that, as along as the amount of pensionary benefits due to the petitioner is not attachable, the restrainment imposed by the Family Court against disbursal of the sum by the 2[nd] respondent is not sustainable. The petitioner had placed reliance on various decisions of the hon'ble Supreme Court and this court including latest decision in **Radhey Shyam Gupta vs. Punjab National bank and another (2009 (KHC 4050).** 3. It is noticed by this court that while passing Ext.P3 order the Family Court has not taken into consideration about the nature of the question of attachability of the pensionary benefits. 4 OP(FC).449/2015 The order restraining the 2[nd] respondent from disbursing the amount was passed without considering the question as to whether the amount due from the 2[nd] respondent can be attached in the original petition instituted by the 1[st] respondent. Therefore we are of the considered opinion that the matter need to be remanded to the Family Court for a consideration of the question with respect to attachable nature of the pensionary benefits due from the 2[nd] respondent to the petitioner herein. The Family Court shall consider the same with opportunity afforded to the respondents and the petitioner. An early decision in this regard is highly solicited in view of the fact that by virtue of Ext.P3 order the petitioner is deprived from getting any of his pensionary benefits. 4. Under the above mentioned circumstances the above original petition is hereby allowed and Ext.P3 order passed by the Family Court in IA.No.794/14 in OP.398/14 is hereby set aside. The Family Court is directed to reconsider the matter and to pass appropriate orders taking into consideration of the objections raised by the petitioner with respect to attachability of the pensionary benefits. A decision in this regard shall be taken OP(FC).449/2015 5 afresh after affording opportunity to all parties concerned, at the earliest possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgement. 5. Till such time fresh orders are passed as directed above, the restrainment imposed on the 2[nd] respondent with respect to disbursement of the amounts will continue. C.K.ABDUL REHIM, JUDGE MARY JOSEPH, JUDGE Pmn/ OP(FC).449/2015 6