Raman Nadar Chandran v. Ponnumuthan Nadar Raju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936** **OP(C).No. 2196 of 2011 (O) ---------------------------** **AGAINST THE ORDER IN EP NO.222/2001 IN OS 500/1999 of I ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA.** **PETITIONER(S):** **--------------** **RAMAN NADAR CHANDRAN , ANAMARAM VALICHA CHANDRA BHAVAN, KANJIRAMKULAM VILLAGE, KANJIRAMKULAM DESOM.** **BY ADV. SRI.V.SUNIL KUMAR (PANACHAMOODU)** **RESPONDENT(S):** **---------------** **PONNUMUTHAN NADAR RAJU ,CHEENIVILA VADAKKAKARA PUTHEN BUNGLOW, KAZHIVOOR DESOM, KANJIRAMKULAM VILLAGE-PIN 695 121.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 2196 of 2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - TRUE COPY OF THE ORDER DATED 4/1/2002 IN EP NO.222/2001 IN O.S.N O.500/1999 ON THE FILE OF THE COURT OF THE FIRST ADDITIONALO MUNSIFF'S COURT, NEYYATTINKARA.** **EXT.P2 - TRUE COPY OF THE AFFIDAVIT DATED 22/10/2009 FILED BY THE RESPONDENT HEREIN IN EP NO.222/2001 ON THE FILE OF THE COURT OF THE FIRST ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA.** **EXT.P3 - TRUE COPY OF THE OBJECTION IN EP NO.222/2001 ON THE FILE OF THE SECOND ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA.** **EXT.P4 - TRUE COPY OF THE DEPOSITION OF PW1 IN EP NO.222/2001 on the FILE OF THE COURT OF THE FIRST ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA.** **EXT.P5 - TRUE COPY OF THE DEPOSITION OF DW1 IN EP NO.222/2001 IN O.S.NO.500/1999 ON THE FILE OF THE FIRST ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA.** **EXT.P6 - TRUE COPY OF THE ORDER DATED 4/6/2011 IN EP NO.222/2001 IN O.S.NO.500/1999 ON THE FILE OF THE FIRST ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA.** //true copy// P.S. to Judge “C.R.” **K. HARILAL, J. -----------------------------------------------------O.P.(C) No.2196 of 2011-O -----------------------------------------------------Dated this the 25[th] day of November, 2014** ## **JUDGMENT** The petitioner and the respondent are the judgment debtor and the decree holder respectively in E.P.No.222/01 in O.S.No.500/99 on the files of the I Additional Munsiff's Court, Neyyattinkara. The said suit, for realisation of money, was decreed allowing the respondent to realise a sum of Rs.30,000/- with interest from the petitioner. The above application was filed by the respondent herein to execute the said decree, by arrest and detention of the petitioner in the civil prison. According to him, the petitioner has refused to pay the decree debt, though, he has sufficient 'means' to pay the same. He has got **O.P.(C) No.2196 of 2011** -: 2 :- monthly income of `5,500/- from sale of agricultural products and milk. The petitioner filed an objection raising the plea of 'no means'. The petitioner contended that he is a casual labourer and he gets only `150-160 per day as wages. His wages cannot be taken into account, in calculating his means, and the said income is the sole livelihood of his family. The respondent/decree holder was examined as P.W.1 and the petitioner/judgment debtor was examined as D.W.1. The Execution Court, after considering the oral evidence of both parties, rejected the contentions of the petitioner, and he is ordered to be detained in civil prison, for three months for his wilful refusal to pay the decree amount; consequently, issued arrest warrant against the petitioner. The legality, propriety and correctness of this order are under challenge in this original petition. 2. Sri. V. Sunil Kumar, the learned counsel for the petitioner advanced arguments assailing the findings of the court below that the petitioner has sufficient **O.P.(C) No.2196 of 2011** -: 3 :- means to pay the decree debt. According to him, in the instant case, detention in civil prison cannot be ordered, unless it is found that the petitioner has sufficient means and he refused to pay the decree amount. Even if he is getting `150 - 160 per day as wages, the said amount is liable to be left out, in full, in calculating his means to pay the decree debt in view of the Explanation to Section 51 read with Section 60(1)(h) of the Code of Civil Procedure. The Explanation to Section 51 of the C.P.C. clearly says that in the calculation of the means of the judgment debtor for the purpose of clause (b) of the proviso to Section 51, there shall be left out of account of any property which, by or under any law or custom having the force of law for the time being in force is exempt from attachment in execution of the decree. The wages of labourers is completely exempted from attachment under Section 60(1)(h) of the C.P.C. If that be so, the wages of the labourers also cannot be accounted in calculating means of the judgment ## **O.P.(C) No.2196 of 2011** -: 4 :- debtor. 3. Though, notice had been duly served on the respondent/decree holder, he did not enter appearance before this Court to justify the issuance of warrant, in execution of the decree. Considering the far reaching consequences that may be caused by the order to be passed, if the argument put forward by the learned counsel for the petitioner is accepted, this Court appointed Advocate Manoj.T.N., as Amicus Curiae, to help the Court to arrive at a just and proper decision on the above legal issue raised by the learned counsel for the petitioner. 4. Sri. Manoj advanced arguments fervently opposing complete exemption of wages from the account in calculating the 'means' to pay the decree amount. He drew my attention to Clauses (h) and (i) of Sec.60(1) of the Code of Civil Procedure and submitted that Clauses (h) and (i) cannot be construed independently and separately in the backdrop of the evolution of these Clauses to the present form as now **O.P.(C) No.2196 of 2011** -: 5 :- finds in the C.P.C. According to him, on a combined reading of these two Clauses in juxtaposition, it is discernible that 'wages' and 'salary' appearing under Sec.60(1)(h) and (i) of the C.P.C. are analogous in nature and wages of the labourers is not fully exempted irrespective of the quantum amount which they are receiving. In short, there cannot be a complete immunity of wages in view of Sec.60(1)(h) of the CPC, in calculating the 'means' of labourers where they are receiving wages. To buttress his arguments, Sri. Manoj, cited the decisions in Gita Mitra v. Hemanta Kumar Mitra [AIR 1982 Calcutta 336]; Thomas v. Venugopal Chitties & Finances [1993 (1) KLT 105]; and Mohamed Ibrahim v. State Bank of Travancore [AIR 1964 Madras 233]. 5. According to Sec.51(c) of the C.P.C., among the different modes of execution of a decree, the court may order execution of the decree by arrest and detention in prison, provided that, where the decree is for payment of money, execution by detention in **O.P.(C) No.2196 of 2011** -: 6 :- prison shall not be ordered, unless the court is satisfied of any of the requirements under Clauses (a) to (c) of the said proviso. According to Clause (b), the court must be satisfied that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. Further, according to the Explanation under the said proviso, in the calculation of the means of the judgment debtor, for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force is exempt from attachment in execution of the decree. Then the question is what are the properties which shall not be liable to attachment or sale in execution of a decree? The properties which are not liable to attachment is enumerated under Clauses (a) to (p) of the proviso to Sec.60(1) of the C.P.C. According to Clause (h) of the proviso to Sec.60(1), the wages of the labourers and **O.P.(C) No.2196 of 2011** -: 7 :- domestic servants, whether payable in money or in kind is not liable to be attached in execution of a decree. In view of Clause (h) of Sec.60(1), the argument advanced by the learned counsel for the petitioner is that being a labourer, even if the petitioner is getting average of `4,500/- per month as wages, the said amount is completely exempted from attachment in execution of a decree. Consequently, in the light of the Explanation to the proviso to Sec.51, the said amount is completely exempted in calculating the means of the petitioner to pay the decree amount. Necessarily, it follows that the petitioner cannot be held to be a judgment debtor having means to pay the decree debt. If he has no means, he cannot be detained in civil prison in execution of this money decree. This is the legal basis from which the petitioner set up his case in this Original Petition. 6. The question that emerges for consideration from the above legal issue in controversy is, where the judgment debtor is a labourer getting wages, can his **O.P.(C) No.2196 of 2011** -: 8 :- wages be completely exempted from his account, in calculating his means to pay the decree amount, in view of Section 60(1)(h) of the C.P.C., for the purpose of detention in civil prison, in execution of money decree, under Clause (b) of the proviso to Sec.51 of the C.P.C.? 7. Since the legal issue centers around Sec.60(1) (h) and (i) of the C.P.C., it is apposite and useful to have traced the evolution of the said provision now finds in the C.P.C. Before 1943, there was no separate clause as (h) and (i) to Sec.60(1), as now finds in the C.P.C. There was only one clause as (h) which reads as follows: ## “The wages of labourers and domestic servants, whether payable in money or in kind; and salary to the extent of the first hundred rupees and one-half of the remainder of the salary.” Later, by Act 5 of 1943, the Clause (h) was divided into two such as Clauses (h) and (i). The words “salary to **O.P.(C) No.2196 of 2011** -: 9 :- the extent of the first hundred rupees and one-half of the remainder of the salary” were omitted by Act 5 of 1943 and introduced another Clause (i) with that omitted portion. Subsequently, the following words “in execution of any decree other than a decree for maintenance” were inserted by Act 66 of 1956. Thereafter, the words “the first hundred rupees” were substituted with the words “first two hundred rupees” by the Act 26 of 1963. Later, by the Act 104 of 1976, the words “first two hundred rupees and one-half of the remainder” were substituted with the words “four hundred rupees and two thirds of the remainder”. Lastly, by the Act 46 of 1999, with effect from 1/7/2002, “first four hundred rupees” was substituted with 'first one thousand rupees'. As on today, Clause (h) and (i) of Sec.60 of the C.P.C. reads as follows: “The wages of labourers and domestic servants, whether payable in money or in kind”. Clause (i): ## “Salary to the extent of the ## **O.P.(C) No.2196 of 2011** -: 10 :- first one thousand rupees and two thirds of the remainder in execution of any decree other than a decree for maintenance.” 8. The expression “wages” has not been defined in the C.P.C. But, under Explanation-II the expression “salary” has been defined to mean 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. Explanation IV to Sec.60(1) says: “For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a skilled, unskilled or semiskilled labourer.” Thus, though the expression “salary” has been defined to mean the total monthly emoluments, the expression “wages” has not been so defined. The use of the expression “includes” merely has the effect of enlarging the meaning of the word “wages”. At any rate, it can be a remuneration for the service. 9. The High Court of Calcutta had considered the **O.P.(C) No.2196 of 2011** -: 11 :- extent of exemption given to “wages” of labourers in Clause (h) of Sec.60(1) of the C.P.C. in Gita Mitra v. Hemanta Kumar Mitra [AIR 1982 Calcutta 336]. The Calcutta High Court made a survey in other Statutes like the Payment of Wages Act, 1936, Industrial Disputes Act, Workmen's Compensation Act, 1923 etc., and held as follows: “11. It follows, therefore, that in analogous statues dealing with workman which is synonymous with a labourer, and their wages the statute has invariably fixed a limit. That being the position, we feel that in construing the extent of exemption of the wages of a labourer u/s. 60 of the Code a reference to the amount of wages becomes almost imperative as we have already indicated that it could never have been the intention of the legislature that the wages irrespective of its amount shall be exempt when, the legislature did not consider it necessary to exempt salary ## **O.P.(C) No.2196 of 2011** -: 12 :- beyond the first 400 Rupees of any other class of employees. Workman as defined in the several other statutes providing for adequate provision for their welfare and protection did not include persons drawing more than Rs.500 a month at the most. Therefore, it seems to us that cls. (h) and (i) read together in the light of similar statues dealing with the welfare of labourers and workmen postulate only such labourers whose wages do not exceed Rs.400 to 500 per month.” 10. In the above analysis, the Court observed that the word “labourer” must be construed having regard to the subject matter and intention of the Act. Taking the collocation of the word “labourer” with “domestic servant” it is obvious that the reasonable application of the clause is to persons of small means receiving small wages at short intervals. It seems obvious that the object was to except from the liability to attachment of debts, the case of persons, who would **O.P.(C) No.2196 of 2011** -: 13 :- be likely to be deprived of their daily means of subsistence by having their earnings attached in the hands of their employers. Taking the wider connotation of the term 'salary', it seems that the amount paid on monthly basis and described as pay and officiating pay etc., even though earned by a person doing manual work, would be salary and not wages which has a restricted connotation. 11. Finally, the Court observed that the entire amount of wages of a labourer should not be exempt from attachment in execution of a decree for maintenance. The exemption cannot exceed the amount provided in the other clause of the section namely Clause (i), which relates to persons supposed to be better placed than labourers or domestic servants. I am also in full agreement with the interpretation given by the Calcutta High Court to the extent of exemption of wages in Clause (h) of Sec.60 of the C.P.C. 12. It is significant to note that when this **O.P.(C) No.2196 of 2011** -: 14 :- exemption clause was provided in the Code under Sec.60, the legislature in its wisdom considered it necessary to give some protection to labourers and domestic servants by exempting attachment of wages earned by them as the wages of those classes were too low and inadequate to meet their day-to-day living cost. Indisputably, those state of affairs of the labourers at the time when the provision was initially enacted in the Code has considerably been changed and now a manual labourer would get average 500 Rupees per day. Moreover, in our State, a manual labourer would get employment continuously, if he is ready and willing to work. I also endorse the view of the Calcutta High Court that the concept of the wages of a labourer at the time when the provision was initially enacted in the Code has considerably changed since then. It is not uncommon for a labourer now-adays to earn much more than some other employees who are not labourers. This is a situation which was unthinkable at the time when the provision was **O.P.(C) No.2196 of 2011** -: 15 :- originally made in the C.P.C. 13. It is an accepted principle that while interpreting a legal provision, the court should not lose sight of the circumstances and conditions prevailing at the time when the provision was enacted as well as the circumstances in which the provision needs an interpretation. 14. The purposive interpretation given by the Calcutta High Court basing on evolution of law and circumstances existing at the time of legislation is justified by judicial precedents also. In Keates v. Lewis Merthyr Consolidated Collieries Co., Ltd., [(1911) A.C. 641], Lord Atkinson said: “In the construction of a statute it is of course at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed and to the evil which, as appears from its provisions, it was designed to remedy and I think nothing could be more unsafe or more misleading than to allow oneself to be deterred from **O.P.(C) No.2196 of 2011** -: 16 :- putting upon a statute the particular construction, which the consideration of these things would lead one to adopt, by the apprehension of the prejudicial effect it might have on rights and privileges conferred by subsequent legislation unthought of at the time the particular statue was passed.” The cause and necessity of a legal provision may be discovered, first of all, by considering the state of the law at the time when the Act was passed. 15. In S.E. Ry. v. The Railway Commissioners[(1980) 5 Q.B.D. 217, Lush J. said: “While we are to collect what the legislature intended from what it has said, we must look not at one phrase or one section only but at the whole of the Act, and must read it by the light which the state of the law at the time..... throws upon it.” 16. In Abrahams v. Mac Fisheries, Ltd., [(1925) 2 K.B. 18] Fraser J. said: “In order to ascertain the true meaning [of the legislature] it is necessary to ascertain the circumstances with reference to which **O.P.(C) No.2196 of 2011** -: 17 :- the words were used and what was the object appearing from those circumstances which the legislature had in view.” 17. In considering the meaning of a local Act or a section in a general Act dealing with particular local matters, the state of things existing at the time of the passing of the Act, as showing the circumstances in which it was passed, can properly be considered, as was done by the Court of Queen's Bench in R. v. Dean of Hereford [(1870) L.R. 5 Q.B, 196]. 18. This point of view basing on the purposive interpretation is supported by the observation of this Court in Thomas v. Venugopal Chitties and Finances [1993 (1) KLT 105]. In this decision, this Court observed that “even under Sec.60(1)(h) there cannot be a complete immunity, but it can only be to the extent mentioned in Clause (i), for otherwise it may lead to a very anomalous situation. It is well-known in these days even the wages earned by labourers per month will be much more than Rs.400/- and the **O.P.(C) No.2196 of 2011** -: 18 :- legislature can never have intended that whatever be the income of a labourer, it shall not be attached, but if the salary of a person is just above Rs.400/- a portion of his salary is liable to be attached. That can never be the intention of the legislature while enacting clauses (h) and (i) of Sec.60(1) C.P.C.” 19. To sum up, there cannot be a complete immunity to the wages of the labourer, in calculating his means to pay the decree amount, where he is getting wages. If the labourer is getting more than `1,000/- per month as wages, a portion of his wages is liable to be attached in execution of the decree. If that be so, there cannot be a complete left out his wages in the calculation of the means to pay the decree debt for the purpose of Clause (b) of the proviso to Sec.51 of the Code of Civil Procedure. The exemption cannot exceed the amount provided under Sec.60(1)(i) of the C.P.C. It follows that if such a labourer has means to pay the decree amount and refuses or neglects or has refused or neglected to pay the same, he can be **O.P.(C) No.2196 of 2011** -: 19 :- detained in civil prison in execution of the money decree, under Clause (b) of Sec.51 of the C.P.C. 20. The learned counsel for the petitioner cited the decisions in Xavier v. Canara Bank Ltd., [1969 KLT 927]; Kalidindi Rama Raju v. Vijaya Bank [2002 AIHC 1627]; Patel Gordhan Kanjibhai v. Atlas Engineering Co Works [GLR 1972-0-741 = GJH 1972-3-9] and Nabibaksh v. Abdul Based [43 C.W.N. 427] to fortify his arguments that wages of the labourers is totally exempted from attachment, whatever be the quantum of amount that they have been receiving. I have meticulously gone through the above decisions; but I find that the propositions laid down in those decisions would not render any aid or help to determine the legal issue discussed above. 21. With the aforesaid analysis, I would proceed to consider the present case. During crossexamination, the petitioner himself admitted that he was a casual labourer and he would get Rs.150/- - 160/- per day. Thus, the petitioner himself admitted **O.P.(C) No.2196 of 2011** -: 20 :- that he would get more than Rs.4,500/- per month. In the light of the above discussions, if the wages of the petitioner is more than `1,000/- per month, a portion of his salary is liable to be attached. If that be so, he shall not be deemed to be a judgment debtor having no means to pay the decree amount. On the other hand, he can be held to be a judgment debtor, who refuses to pay the decree amount, as rightly found by the court below, on the basis of his own admission. Thus, the impugned order under challenge is devoid of any illegality or impropriety. 22. Before parting with this judgment, I place on record my unreserved appreciation for the valuable assistance rendered by Sri. T.N. Manoj, the learned Amicus Curiae. In the result, this Original Petition is dismissed. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** ## **//true copy//** ## **P.S. to Judge**