SATHYAVATHY Vs. BHARGAVI

JUDGEMENT

(1.) A question of some difficulty arises in this case. Petitioner before us is a decree holder. The respondents are the legal representatives of the judgment.-debtor. Petitioner secured a decree for Rs.5,000/- with interest. This amount of Rs.5,000/- was borrowed by the wife of the 2nd respondent. The wife of the 2nd respondent and the petitioner were teachers in St. John Bosco's Lower Primary School.

(2.) Petitioner instituted a suit, O.S. No. 1142/86 and obtained a decree. Petitioner filed an execution petition for realisation of an amount of Rs.7,627.75 as E.P. No. 676/87. Petitioner wanted to attach the provident fund and gratuity amounts due to the deceased wife of the 2nd respondent. It is in evidence that the 1st respondent, i.e., the deceased wife of the 2nd respondent is entitled to get an amount of Rs.11,000/- as provident fund and nearly an amount of Rs.17,000/-as gratuity. This amount has to be obtained from the Assistant Educational Officer, Cherpu. The respondents contended that the amounts are not liable to be attached in view of the provisions contained in S.60(1)(g) of the Code of Civil Procedure. The court below considered the question and found that the amount is not liable to be attached. The decree holder, the petitioner is aggrieved and she has filed the Civil Revision Petition. The matter was referred by one of us for the decision of a Division Bench.

(3.) The contention raised by the petitioner before us is that even though the gratuity amount is an amount exempted from attachment under S.61(1)(g) of the Code of Civil Procedure, that exemption is not available to the legal heirs of the person who earned the gratuity amount. In this case, admittedly the deceased wife of the 2nd respondent earned the gratuity amount and when that amount is payable by the Department, the person who earned the gratuity amount is not in a position to receive it, since she has left this world leaving only her estate to be represented by her legal representatives. So naturally the amount can be claimed only by the legal representatives as the asset of the deceased. The question is when once this amount devolves on the legal representatives as amount earned by the deceased whether the same exemption granted under S.60 (1)(g) of the Code of Civil Procedure survives. S.60(1)(g) of the Code of Civil Procedure reads thus: