PREM NATH Vs. NAND LAL KHARE

JUDGEMENT

(1.) Heard Sri Gyan Prakash, for the appellant. No one has appeared for the respondent. The appeal arises out of an execution proceeding in respect of an award dated 6-1-1970. Under the award the claim of the plaintiff was decreed and he was allowed to realise the same by attachment of pay of Sri Nand Lal Khare at the rate of Rs. 150/- per month to the extent of Rs. 200/-. It was further provided that the plaintiff may realise the decretal amount by attachment of provident fund in the lifetime or after his death. The trial Court rejected the objections and proceeded with the attachment of Rs. 150/- per month as per award. The lower appellate Court has allowed the appeal and held that the amount to the extent of Rs. 200/- could not be attached in execution of the decree.

(2.) The argument of the learned counsel is that the award was binding on the party and had the effect of a compromise decree. Consequently if the party agreed not to take protection of any statute then he cannot be permitted to take the objection at the stage of the execution. I am not prepared to accept the same. There could be neither any estoppel nor any agreement against the statute itself. Under the circumstances the salary to the extent of the first Rs. 200/-could not be attached. One thing may be made clear. The Court below has mentioned that the basic pay was Rs. 212/-. In execution and for the purpose of Section 60 we are not concerned with the basic pay. We are concerned with the salary that will include allowances along with the basic pay. Under the circumstances, the appeal has no force. It has to be dismissed.

(3.) The decree-holder-appellant can proceed to attach the amount of salary in excess of Rs. 200/in accordance with Section 60(1) of the Civil P. C. The attachment in the instant case was made before the amendment of the Civil P. C. by the Amending Act, 1976, therefore the attachment in excess of Rs. 200/- of pay can proceed. The amended provision of Section 60, C. P. C. will not be applicable in view of Clause (g) of Section 97 of the Amending Act. Under these circumstances, the appeal is dismissed. As no one has appeared for the other side, there will be no order as to costs.