CHRISOSTOM Vs. FEDERAL BANK LTD

JUDGEMENT

(1.) The appellant is the second defendant in.O.S.85/92 on the file of the Prl. Sub Court, Kochi. The respondent bank filed suit against the appellant and two others for realisation of amount due under a loan transaction. The first defendant in the suit was the principal debtor. The appellant herein was a surety to that transaction. The appellant was working in a private company. He retired from service on 31-3-1992. The appellant was entitled to receive certain pensionary benefits including gratuity. A sum of Rs.30,000/- was due to the appellant as gratuity from the employer. The respondent bank filed I.A776/92 under O.39 R.1 and 2 of the Code of Civil Procedure to restrain the appellant from receiving the retirement benefits from his employer. The appellant raised objection by contending that the pensionary benefits such as gratuity is not liable to be attached under S.60(1)(g) of the Civil Procedure Code and therefore an injunction shall not be granted under O.39, R.1 and 2 of C.P.C. The court below held that even if the amount is not liable to be attached under S.60(1)(g) of the C.P.C., a prohibitory injunction can be issued against the appellant from receiving the gratuity. The order passed by the Sub Judge is under attack in C.M.A.

(2.) S.60(1)(g) of the Civil Procedure Code states that stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer or payable out of any service family pension and notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions are not liable to be attached for the sale and execution of a decree. Prior to 1976 amendment, stipends and gratuities allowed to the pensioners of Government alone were exempted from attachment. But by CPC amendment Act, 1976 the gratuities payable by the local authority or of any other employer are also liable to be exempted under S.60(1)(g). A plain reading of S.60(1 )(g) makes it clear that the gratuity payable to the appellant is not liable to be attached.

(3.) The next question that is to be considered is whether an order could be passed under O.39 R.1 and 2 of C.P.C. The learned Sub Judge was of the view that even if there is a prohibition under S.60(1)(g) of C.P.C., that will not stand in the way of the court for passing an order under O.39,R.l and 2 of C.P.C. I do not think that the view taken by the Sub Judge is correct. If an order of injunction is passed, the amount will be retained by the employer. The plaintiff or the decree holder would not be in a position to attach this amount. If the amount remains with the garnishee, for realisation of the same, the decree holder has to take steps under attachment under O.21 R.46. If an attachment under O.21 R.46 is prohibited under S.60(1)(g) of the C.P.C. merely by obtaining a prohibitory injunction from the court, the plaintiff would not be in a position to proceed with the amount retained with the garnishee. So it is clear that in this case the court would not be in a position to pass an effective order with regard to this amount and as the court cannot effectively pass any order relating to this amount, interim injunction shall not be granted. Moreover the mandate of S.60(1)(g) is that gratuity payable to the employee is not liable to be attached for being appropriated towards decree amount. A party shall not be allowed to circumvent the provisions of law on technical plea, and court shall not grant such relief, especially in the nature of injunctory form as it is a discretionary relief.