JRAMGOPAL Vs. HMISRILAL AND SONS

JUDGEMENT

(1.) The petitioner is employed as the Sales Manager in George Oakes Ltd., a private firm dealing in motors and other accessories in Bangalore City. In pursuance of a decree obtained against him, the respondent sought to attach the salary of the petitioner and the attachment warrant was served on his employer on 7-10-1952. It is contended that no pay was due on that date and that the salary that may become due on a future date to person in private employment cannot be attached in advance under Order 21, Rule 48, Civil P. C. This argument is not without force.

(2.) Order 21, Rule 43 refers to the attachment of salary or allowances of a servant of the Crown or of a Railway Company or of any Local Authority. Nowhere in that Rule is any reference made to the mode of attachment of the salary due from a private firm. It is undoubted that under Section 60, Civil P. C. Clause (i) the exemption from attachment of salary to the extent of first hundred rupees and one half of the remainder is common to all services, public or private; it is argued on that basis that salary due to a person from a private firm could be attached whether before or after it becomes payable. This contention appears to be unsound. Expln. (1) to Section 60 declares that in the case of a salary other than the salary of the servant of the Crown, or of Railway Company or Local Authority, the attachable portion thereof is exempted from attachment until it is actually payable. The question therefore that falls for determination is whether wages were due to be payable on 7-10-52, the date of attachment. In the case of servants of the Crown etc., the mode of attachment is by service of a warrant on the disbursing officer who is directed to withhold the portion directed to be attached at the time of disbursement, and hence the salaries of the servants of the Crown, Railway Company or Local Authority can thus be attached in advance. But whether such a procedure is available in the case of private firms is open to doubt. There is security of service under the Crown and a warrant of attachment is directed to be given effect to as and when the amount is payable on the grounds of public policy. But the salary that may become due from a private firm is contingent upon other considerations, and it cannot be said to be payable until it is actually earned. So unlike the case of the Government servants, the salary of the servants in a private firm can only be attached when it becomes actually payable. In that view, Rule 46 of Order 21 which provides tor attachment of debts becomes applicable to such cases. A similar question came up for consideration before the High Court of Nagpur, and it was held that Order 21, Rule 48, has no application in the case of persons who are in private service and that the issue of a prohibitory order against an employer of a person on the 23rd of a month attaching the prospective pay is illegal as the pay that would fall due on the first of the subsequent month is not a debt on the date of the order : vide--'Nagoba v. V. A. Zinjarde', AIR 1929 Nag 338 (A). I am respectfully In agreement with the opinion expressed therein, and hold that the salary in a private company must be attached as a debt and can be so done only when it actually becomes payable. In this view, the order of the learned Judge purported to have been issued under Order 21, Rule 48, Civil P. C. obliging the employer to withhold payments as and when they become due is untenable.

(3.) In the result, the order of the learned Judge of the Court of Small Causes is set aside and this petition is allowed, parties bearing their own costs.