SYED ABDUL AZEEZ KHAN Vs. FLOWER W J

JUDGEMENT

(1.) THIS is a petition by the decree-holder in Original Suit No. 61 of 1961, on the file of the Court of the District Munsif of Sholinghur to revise the order of the Court of Small Causes in Execution Petition No. 4825 of 1961 in the suit. The simple question for decision in this case is whether the amounts standing to the credit of a railway employee in a provident fund is attachable in execution of a decree obtained against him because he has retired from service. Even where an order has been issued directing the payment of the amount to him, clearly it is not so attachable. Under Section 3 of the Indian Provident Funds Act, any amount standing to the credit of any sub-scriber or depositor shall not be liable to attachment under any decree or order of any civil, revenue or criminal Court in respect of any debt or liability incurred by the subscriber or depositor. There has been no nomination in this case and so there is no necessity to refer to Section 5 of the Act. The amount does not become the judgment-debtor's till it is paid out to him. It may be that if after the amount is paid out to him the judgment-debtor does not pay the decree-holder, the decree-holder may apply for the arrest of the judgment-debtor. But, clearly when such an amount is still in the hands of the authorities, that is, the garnishee, who holds the provident fund in this case, any decree holder holding a decree against the judgment-debtor, a subscriber, cannot attach that amount. The result is that this civil revision has to fail.

(2.) LEARNED Counsel for the decree-holder referred me to a decision in Haneswar v. Bepin Behary A. I. R. 1922 Cal. 196. There the money standing to the credit of the retired employee was held attachable because Rule 10 of the rules was in this form: The amount which accumulates to the credit of a subscriber in permanent employ will, when he quits the service, become his property and will be handed over to him, unless the Accounts Officer has received notice of an attachment, assignment or encumbrance affecting the disposal of the amount or any portion of it. Should such notice have been received, the Accounts Officer will hand over to the subscriber only that portion of the amount which is not affected by the attachment, assignment or encumbrance and shall obtain the orders of the Comptroller and Auditor-General, as administrator of the fund, regarding the disposal of the balance. So it would seem that the decision was clearly based on the rules relating to the provident fund. These rules were made under the Provident Funds Act of 1897. The present Act makes the amount in a provident fund to the credit of a subscriber not attachable in execution of a decree against him. The decision in Central Bank of India v. M. V. V. Rao A. I. R. 1949 Cal. 144 will not help the petitioner because there it was held that a compulsory deposit in a railway provident fund is, under Section 3 of the Provident Funds Act, 1925, immune from attachment, even after it has become payable and the immunity extends up to the time It remains to the credit of the subscriber.

(3.) IN Union of India v. Him Devi it was held that the definition in Section 2 (a), Provident Funds Act, makes it clear that the provident fund amount not paid to the subscriber after the date of his retirement is also a compulsory deposit. Such a deposit cannot be assigned or charged and is not liable to attachment under Section 3 (1) of the Provident Funds Act. It is exempt from attachment and sale also under Section 60 (k), Civil Procedure Code.