D PADMA Vs. PARUDDIN KHAN

JUDGEMENT

(1.) THESE two civil revision petitions involve a very interesting point of law which can briefly be summarised in the following proposition: whether the embargo contained in Section 60 of the C. P. C. with regard to immunity from attachment in respect of certain categories of property does hold good even when the judgment-debtor has died and the legal heirs step into the picture. Conversely, whether the immunity from attachment that is conferred on these categories of property would fail to hold good when the property comes into the hands of the legal heir?

(2.) THE facts of this case are briefly that the petitioners are the wife and minor children of the original defendant to a suit for recovery of money. The original plaintiff who is the respondent before me was a money lender and the defendant, a government employee had incurred certain debts with him in respect of which the recovery proceedings had been instituted. The decree in question came to be passed against the defendant after which he died and the execution proceedings have been instituted for recovery of a sum of Rs. 11,300/- against the wife and minor children. The judgment-debtor did not possess any tangible property which could be attached in satisfaction of the decree and it is for this reason that an attachment came to be levied on the gratuity amount that was due to the credit of the deceased. At this stage, an application was filed before the executing court contending that by virtue of the provisions of Section 60 (g) of the C. P. C. that the amount in question which represented the greater part of the gratuity payable to the deceased employee was exempt from attachment. It would be useful to reproduce the provisions of Section 60 (g) which read as follows:

(3.) THE petitioner's learned Advocate has presented a very short clear cut challenge to the correctness of the order. He points out that there is no dispute about the nature of the funds that have been attached in so far as admittedly they come within the head of gratuity payable to the deceased. He states that Section 60 (g) clearly prohibits such amounts being attached and it is his further submission that this bar will apply irrespective of whether the amount is still with the authority or for that matter whether it has been already handed over to the pensioner. His further submission is that merely because the money has physically changed hands and is in the custody of the legal heirs, that it will make no difference in so far as the restriction will still apply. The contention therefore is that the attachment is bad and that the Order of the trial court requires interference with.