MADRAS AND SOUTHERN MAHARATTAH RAILWAY Vs. CHENGALI SYDALLI

JUDGEMENT

(1.) This civil revision petition raises the question whether a railway company can raise an objection under Section 60, Civil P. C., to the attachment of the provident fund amount payable to one of its employees. Respondent 1 who obtained a money decree against respondent 2 who was an employee in the Madras and Southern Maharatta Railway Co, applied to the Court of the District Munsif of Vizagapatam for a prohibitory order directing the petitioner to attach the amount due to the judgment-debtor from out of the provident fund that the judgment debtor was entitled to from the railway company on his retirement. The District Munsif directed the attachment of Rs. 503-5-4 and this order of attachment was made absolute on 22nd April 1946. The railway company, as garnishee thereupon filed an application for raising the attachment under Section 60, Civil P. C., on the ground that according to the Provident Funds Act, the Provident Fund payable to the judgment-debtor was exempt from attachment, Though notice was served on the judgment-debtor he did not appear in Court and raise any objection to the attachment claiming exemption under Section 60, Civil P. C. The District Munsif dismissed the application filed by the railway company holding that the exemption can be claimed only by the judgment-debtor and if for some reason or other the judgment-debtor did not choose to take advantage of the privilege no one else was entitled to claim the benefit of the provisions under Section 60, Civil P. C. He also observed that if the judgment-debtor exercised his right under Section 60, Civil P. C., then the Court was bound to raise the attachment. In support of this view, he relied upon a decision of the Lahore High Court in Bhagu v. Batna Singh, A. I. R. (20) 1933 Lah. 251: (145 I. C. 169). It is against this order of the District Munsif of Vizagapatam that the present civil revision petition is filed by the Madras and Southern Maharatta Railway Company.

(2.) It is necessary before I deal with the question raised and the authorities cited before me to refer to the proviso to Section 60, Civil P. C., which lays down that:

(3.) It is argued by the learned counsel for the petitioner that the trial Court failed to exercise the jurisdiction vested in it by law on an erroneous view of the law and he also maintained that the decision relied on by the trial Court is distinguishable on the facts of that case. In support of his contention that the railway company also could take objection to the attachment of the provident fund payable to the judgment-debtor he cited to me two cases one reported in Rajendra Kumar v. Central Government, A. I. R. (31) 1944 Lah. 168 : (215 I. C. 110) and the other in Postmaster General, Bombay v. Chenmal Mayachand, I. L. R. (1941) Bom. 415 : (A. I. R. (28) 1941 Bom. 389). In Rajendra Kumar v. Central Government, A. I. R. (31) 1944 Lah. 168: (215 I. C. 110) the salary due to an employee of the post office was attached and on an objection taken by the Government that the salary was not attachable having regard to the provisions of Section 60, Civil P. C. the attachment was raised. In dealing with the contention that the Government was not entitled to raise the objection regarding the attachment of the salary the learned Judges stated that "the proceedings taken on behalf of the Government are more or less in the nature of proceedings by a garnishee and it was open to them to draw the attention of the Court to the provisions of Section 60, Civil P. C, which have been specifically referred to under Order 21, Rule 48, Civil P. C., and that they were entitled to object and to bring the illegality to the notice of the Court. The learned Judges laid down the principle that the provisions of Section 60, Civil P. C., operated as a bar to attachment of the salary, In spite of a judgment between the parties to the execution proceedings holding that the judgment-debtor's salary was liable to attachment.