VIGNESHWAR Vs. GANGABAI KOM NARAYAN BHAT PRASAD

JUDGEMENT

(1.) A rather tricky situation has arisen in this case wherein the respondent who is receiving a small amount of political pension and who is the judgment-debtor in execution proceedings before the lower Court had taken up a plea that the amount lying in her bank account which was sought to be attached in execution of the decree is immune from attachment by virtue of the provisions contained in Section 11 of the Pensions Act which prescribes a bar to the attachment of pension amounts. Basically the respondent had pleaded that Section 60(g) C.P.C. very clearly excludes such sums of money from attachment. The learned trial Judge after hearing the parties upheld the contention and it is against this order that the present C.R.P. has been directed. The petitioner's learned advocate submitted that the law with regard to the immunity from attachment has now been settled and that the view taken by the various Courts and in particular, the Supreme Court decisions reported in AIR 1969 SC 762 : (1969 Lab IC 1146) and AIR 1976 SC 1163 : (1976 Lab IC 773) have upheld the position as enunciated in AIR 1956 Mad 283 (FB). A Division Bench of the Kerala High Court in a decision reported in 1992 (2) Civil LJ 50 also followed the same line of reasoning. The petitioner's learned advocate submitted that in all these cases the principle that was first laid down by the English Courts has been consistently upheld namely that the immunity from attachment subsists only as long as the amount in question is held by the trustees, such as situations, in which the amount has accumulated with the provident fund authorities or with an employer by way of gratuity benefits or is still in the hands of the disbursing authority or with the Govt. in the form of pension payable etc. His submission is that this special provision is limited to situations in which the amounts which are in the form of savings are held in trust by the Govt. or by some other agency and since these are required to be disbursed at a prescribed point of time with the sole object of providing some insurance when the employee requires it, that the amount is immune from attachment in so far as the law considers that it must be so saved and should not be lost even if a decree is required to be executed. On the other hand, the learned advocate has relied on all the aforesaid decisions wherein the view taken is that once the amount has been disbursed or in other words once it changes complexion, that it is capable of being attached as it changes character and no longer conforms to the definition of Provident Fund, Gratuity etc. but will have to be treated as being on par with any other assets which the judgment-debtor holds and which are liable to attachment. Learned advocate therefore submits that in the present case merely because the bank in question was the disbursing authority for the pension, that it would make no difference because once the pension amount has been physically deposited in the respondents bank account, it becomes her personal money, it is no longer regarded as pension and above all, she has the right to use it, it is capable of attachment like any other sums that belong to the judgment-debtor. Learned advocate therefore submitted that the order is inherently erroneous in law and that it must be set aside.

(2.) The respondent's learned advocate vehemently contended that the order is correct and he sought to contend that it makes no difference whether the nationalised bank is still holding the pension amount or whether the amount has been transferred to the bank account of the petitioner. Learned advocate submitted that under the current rules, the pension amounts are paid through the medium of nationalised banks and he pointed out therefore that as long as the amount is still with the bank irrespective of whether it remained with the financial institution or whether it had been credited to the respondent's bank account, it would make no difference and that it was still immune from attachment. As far as this aspect is concerned, I need to point out that there is an inherent flaw in the argument in so far as as long as the pension amount is with the nationalised bank, it is on par with such amounts which are still in the custody of the Govt. or the disbursing agency and therefore there can be no doubt about the fact that the amount is for all intents and purposes a pension payment. Once this has been deposited into the respondent's saving bank account as has happened in this case, the Govt. or the bank has no control over that amount is so far as it is the account holder who has the absolute right to retain it there or to do whatever she wishes with it and in this background therefore it would be wrong to contend that merely because the amount was still with the bank that it retained its character as a pension payment. The fallacy in the argument is further demonstrated from the fact that even if the respondent had retained the amount with the bank in the form of a fixed deposit or any other such investment, though the exact equivalent of money was still with the bank it could never come within the definition of pension because it has ceased to be pension payment once it is handed over to the respondent.

(3.) The real issue is as to whether such an amount of money would qualify for attachment immediately, on its being disbursed or whether the immunity would hold over for some period of time. The petr. learned advocate has, on the basis of the case law referred to by me advanced a clear cut submissions that the immunity is limited only to the period of time prior to the disbursal and I must confess that all the aforesaid cases related to a situation whereby an attachment was asked for prior to the amount being disbursed. It is true that in the Kerala case the Division Bench did visualise a situation whereby an attachment could be levied once the disbursal has been made and the Courts did have occasion to visualise this situation in some of the other cases also. Since the consistent view was that the protection is available until such period of time when the amount was still with the authority namely the Govt. or the Provident Fund Commissioner etc. the Courts had proceeded on the footing that the money changed complexion once it was disbursed. In the present case, the respondent's learned advocate has advanced the contention that the immunity or protection must necessarily carry over for a reasonable period of time after disbursal as otherwise it would totally and completely defeat the whole purpose for which the immunity was provided. Though the learned advocate conceded that if the amount is converted into some other asset or if it is reinvested or if reasonable time has elapsed after the disbursal and the amount has merged with the other assets of the receipient, that the position would be different, he vehemently submitted that it would be unreasonable and irrational to treat the physical point of disbursement as the cut off period.