Sunilkumar v. Sreejamol and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939 OP (FC).No. 3 of 2018 (AGAINST THE ORDER DATED 12.10.2017 IN E.A.NO.98/2017 IN E.P.NO.24/2015 IN O.P.NO.155/2014 OF THE FAMILY COURT, ALLEPPEY) ## PETITIONER/1ST RESPONDENT SUNILKUMAR, AGED 40, S/O. SUGUNAN, RESIDING AT SUNIL NIVAS, VALAMANGALAM THEKKU, THURAVOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADVS.SRI.A.S.SASIDHARAN SRI.P.J.JOSEPH PANIKKASSERY ## RESPONDENTS/PETITIONERS 1,2,3 & 4: ## 1. SREEJAMOL, AGED 31 YEARS, D/O. REGHUVARAN, RESIDING AT KUNNEL VEEDU, THAZHUP, PARAYAKADU P.O., CHERTHALA TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER PRESIN K. R., S/O. REGHUVARAN, RESIDING AT KUNNEL VEEDU, THAZHUP, PARAYAKADU P.O., CHERTHALA TALUK. ## 2. SUGUNAN, AGED ABOUT 55, RESIDING AT SUNIL NIVAS, VALAMANGALAM THEKKU, THURAVOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-683572. ## 3. LEELA, AGED ABOUT 60, W/O. SUGUNAN, RESIDING AT SUNIL NIVAS, VALAMANGALAM THEKKU, THURAVOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-683572. ## 4. SINDHU, AGED ABOUT 38, D/O. SUGUNAN, RESIDING AT SUNIL NIVAS, VALAMANGALAM THEKKU, THURAVOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-683572. R2,R4 BY ADV. SRI.TOM THOMAS (THRIKKAKARA) R1 BY ADV. SMT.G.N.DEEPA R1 BY ADV. SMT.G.N.JEEJA THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09-02-2018, THE COURT ON 15-02-2018 DELIVERED THE FOLLOWING: OP (FC).No. 3 of 2018 (R) APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER IN E. P. NO. 24/15 IN O.P.NO.155/2014 DATED 27.2.2016 OF THE FAMILY COURT, ALAPPUZHA. EXHIBIT P2 TRUE COPY OF THE SALARY CERTIFICATE OF THE PETITIONER DATED 31.7.2017 ISSUED BY HEADMISTRESS, SCSHSS, VALAMANGALAM. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 12.10.2017 IN E. A. NO. 98/2017 IN E.P.NO. 24/2015 IN O. P. NO. 155/2014 ON THE FILE OF THE FAMILY COURT, ALLEPPEY. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED FROM THE VALAMANGALAM SERVICE CO-OPERATIVE BANK LTD., NO. 144, DATED 09.11.2017. EXHIBIT P5 TRUE COPY OF THE OBJECTION TO THE E. A. NO. 98/2017 IN E. P. NO. 24/15 IN O.P. NO. 155/2014 ON THE FILE OF THE FAMILY COURT, ALAPPUZHA. ## RESPONDENTS' EXHIBITS ----------------------------------- NIL TRUE COPY P.S TO JUDGE ## **'C.R'** ## **V.CHITAMBARESH, J &** ## **R.NARAYANA PISHARADI, J** * * * * * * * * * * * * * * * * * * O.P.(F.C.) No.3 of 2018 ------------------------------------------------Dated this the 15[th] day of February, 2018 ## **J U D G M E N T** ## _**R. Narayana Pisharadi, J**_ The petitioner challenges Ext.P3 order passed by the Family Court, Alappuzha for attachment of his salary in execution of a decree. 2. The first respondent is the wife of the petitioner. She has obtained a decree against the petitioner for return of 446 grams of her gold ornaments or realisation of the value of the ornaments from him. The decree is based on the compromise entered into between the parties in the Lok Adalat conducted on 15.11.2014. The first respondent filed E.P.No.24 of 2015 for execution of the decree. As per Ext.P3 order, the Family Court directed that an amount of Rs.9,120/- shall be attached from the monthly salary of the petitioner for a period of 24 months. O.P.(FC) No.3 of 2018 2 3. We have heard the learned counsel for the petitioner and also the first respondent. The petitioner himself appeared before the court and we have also heard him in person. 4. The petitioner has got a plea that he signed the compromise in the Adalat without understanding the contents of it. The petitioner has not challenged the award of the Lok Adalat in this writ petition. The award has become final. Where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of the civil court and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Art.226 and/or Art.227 of the Constitution, that too on very O.P.(FC) No.3 of 2018 3 limited grounds (See _State of Punjab v. Jalour Singh : AIR 2008 SC 1209 and Bharvagi Constructions v. Muthayam Reddy: AIR 2017 SC 4428)._ 5. The only other plea raised by the petitioner is that his take home salary is Rs.16,447/- and therefore, the court below should not have ordered attachment of an amount of Rs.9,120/- from his salary and the amount ordered to be attached is beyond the permissible limit. 6. The petitioner is working as an Attendant/Peon in an aided school. Ext.P2 salary certificate dated 31.07.2017 issued by the Headmistress of the school contains the following particulars: Deductions |Basic Pay|:|24000|SLI|: 300/-| |---|---|---|---|---| |DA|:|3360|GIS|: 400/-| |HRA|:|1000|LIC|: 463/-| |Total|:|28360/-|PF|: 4000/-| ||||Co-op|| ||||Recovery|: 6750/-| |||||--------------| |||||11913/-| O.P.(FC) No.3 of 2018 4 Net Salary : 16447/- 7. Clause (i) of the proviso to Section 60(1) of the Code of Civil Procedure (hereinafter referred to as 'the Code') provides that salary to the extent of first one thousand rupees and two third of the remainder cannot be attached in execution of any decree other than a decree for maintenance. As per Clause (l), any allowance forming part of the emoluments, as notified by the Government in the official gazette to be exempted from attachment, is not attachable. Explanation II to Section 60(1) of the Code states that 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. 8. The gross monthly salary of the petitioner is Rs.28,360/-. After deductions, his net salary comes to Rs.16,447/-. An amount of Rs.300/- is being deducted O.P.(FC) No.3 of 2018 5 towards State Life Insurance, Rs.400/- is being deducted towards Group Insurance Scheme and Rs.463/- is being deducted as premium payable to Life Insurance Corporation. 9. Clause (kb) of the proviso to Section 60(1) of the Code states that money payable under a policy of insurance on the life of the judgment debtor is exempt from attachment. What is exempted under Clause (kb) of the proviso to Section 60(1) of the Code is the amount payable under a policy of insurance. Evidently the amount which is collected by deduction is not liable to be attached, but not the deductions to be made towards the policy (See _Sasidharan v. K.C.T.S.S.Sangam: 1994 (1) KLT 429_ ). What is exempted from attachment under Clause (kb) of the proviso to Section 60(1) of the Code is the money payable under the policy of insurance and not money payable to the policy of insurance. Therefore, monthly contributions made to the insurance cannot be excluded in reckoning the attachable portion of salary (See _Peethambaran v. Sanku :_ O.P.(FC) No.3 of 2018 6 _1986 KLT 9_ ). What is exempted from attachment is not payment towards life insurance premium but money payable under a policy of insurance. Monthly contributions to State Life Insurance Scheme and Group Insurance Scheme and Life Insurance Corporation cannot be excluded in reckoning the attachable portion of salary. 10. An amount of Rs.4000/- is being deducted from the salary of the petitioner as contribution to the provident fund. Clause (k) of the proviso to Section 60(1) of the Code states that all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925 for the time being applies in so far as they are declared by the said Act not to be liable to attachment, are exempted from attachment. As per Clause (ka) of the proviso to Section 60(1) of the Code all deposits and other sums "in or derived from any fund" to which the Public Provident Fund Act, 1968 applies, in so far as they are declared by said Act, are also exempted from attachment. Clause (k) referred to above O.P.(FC) No.3 of 2018 7 exempts only compulsory deposits in any fund to which the Provident Funds Act, 1925 or any other corresponding law applies. Clauses (k) and (ka) make it clear that what is exempted from attachment is the compulsory deposits and other sums "in or derived from the provident fund" referred to therein and not payment towards such fund. What is exempted is deposits and other sums in or derived from the funds referred to therein. Deposits "into" such funds is not exempted from attachment. In _Kousalya Devi v. Praveen Bankers (1979 KLT 932),_ this court considered the question whether amount contributed to provident fund can be attached. In the above decision it has been held that only after the contribution goes into the fund exemption under clause (k) is available and therefore, the contribution which a person has agreed to make towards provident fund cannot be excluded in reckoning the attachable portion of the salary. This view has been followed in _Geroge Vs. Kurisummottil St. George Chitty Fund (1980 KLT 558)._ It O.P.(FC) No.3 of 2018 8 follows that the monthly contribution to the provident fund cannot be excluded in computing the salary which can be attached. 11. An amount of Rs.6,750/- is being deducted from the salary of the petitioner towards repayment of loan taken from a Co-operative Society. This amount is not exempted from attachment under any of the provisions under Section 60(1) of the Code. 12. What follows is that the gross salary of the petitioner, that is, Rs. 28360/-, has to be taken into account to determine the attachable amount. As per Clause (i) of Section 60(1) of the Code, the first thousand rupees and two-third of the remainder of the salary cannot be attached. What is attachable is one-third of the remaining salary. This amount comes to Rs.9,120/- (Rs.28630-1000 =27630, and 27360x1/3 =9120) As per Ext.P3 order, the Family Court has directed attachment of Rs.9,120/- only from the salary of the petitioner. This amount is not beyond the permissible O.P.(FC) No.3 of 2018 9 limit. The order passed by the Family Court is not in violation of the provisions contained in Section 60(1) of the Code. 13. In this context, it is to be noted that the award for return of gold ornaments was passed in the Lok Adalat on the basis of the compromise entered into between the parties. It means that the petitioner had admitted that he was in possession of the gold ornaments belonging to his wife. The attempt of the petitioner is only to cause delay in execution of the decree obtained against him by his wife. The petition is liable to be dismissed. Consequently, the original petition fails and it is dismissed. No costs. ## **V.CHITAMBARESH, JUDGE** ## **R.NARAYANA PISHARADI, JUDGE** jsr