SHEEBA C THOMAS Vs. ROSAMMA THOMAS

JUDGEMENT

(1.) THIS is an appeal against an order allowing the petition for attachment before judgment. The operative portion of the order reads thus:

(2.) THE appellant is the defendant in the suit. The suit is one for money alleging that the appellant has no other valuable asset or property other than the salary arrears proposed to be released in favour of him by the second respondent. The appellant filed counter affidavit contending that the petition itself is not maintainable and also denied the execution of the promissory note. At the time of argument however, he has taken up a ground that the subject matter of the property is exempted as per S. 60 (1) (i) of the Code of Civil procedure and hence the petition be dismissed. After referring to the contentions of either side and after referring to the decision of the Apex Court reported in Union of india v. Smt. Hira Devi (AIR 1952 SC 227) the Court held that exemption for attachment of the salary under S. 60 (1) (i) of the C. P. C. will not apply to arrears of salary. It is against the said order the present appeal is filed.

(3.) LEARNED counsel for the respondents contended that. the appeal is not maintainable and assuming that the appeal is maintainable, he sought to support the order impugned in this appeal on merits. But learned counsel appearing for the appellant contended that the order now passed by the Court below is virtually under O. 38 R. 6 of the C. P. C. though in the operative portion of the order it is said that the attachment is effected in case he is not furnishing security on or before a particular date. It is his contention that though O. 38 r. 5 (3) also provides for a conditional attachment of the whole or any portion of the property so specified, the present order is one passed under R. 6 (2 ). Thus according to him, if it is an order passed under O. 38 R. 6, it is an appealable order. It is also contended that there is no material difference between salary and arrears of salary. If the salary remains unpaid for a period, even after the due date it becomes arrears and according to him there is no logic in treating the arrears of salary different from salary. Learned counsel also placed reliance on the decision of this Court reported in Nalluswamy v. Veembam (1987 (2)KLT 153 ).