HIMATMAL DEVCHAND Vs. ABDUL HAKKE

JUDGEMENT

(1.) THIS is a notice for rateable distribution under Section 73 of the Civil Procedure Code, 1908.

(2.) THE plaintiff filed his suit in the Vadgaon Court and in due course obtained a decree for Rs. 2,084-10-0. THE defendant is a railway servant and as such a public officer to whom the provisions of Section 60, Clause (i), of the Civil Procedure Code, apply. Other decrees were also obtained by other creditors in suits filed against the defendant. One such suit was filed by creditor No. 8 in 1934, another by creditor No. 3 in 1935. THE other creditors appearing on this notice filed their suits in 1940-41. In execution of the decree obtained by the. plaintiff money is recovered from time to time from the railway company. Disputes have arisen between the parties because of the amendment of Section 60, Clause (i), in 1937 by Act IX of 1937. Before that amendment, under that claflse, the salary of a public servant, when not more than Rs. 40 a month, was wholly exempted from attachment. If it was more than Rs. 40 but below Rs. 80 the salary was exempted from attachment up to Rs. 40, and in all other cases a moiety of the salary was exempted from attachment. By that amendment two important alterations were made. One was to raise the unattachable limit from Rs. 40 to Rs. 100 and made half the salary above that limit attachable. Moreover a proviso was added to' this clause under which the attachment under any one decree could continue for twenty-four months only, and if there was another creditor his attachment could be operative only after the expiration of twelve months under another decree. It is further expressly made clear that once a decree was thus executed for twenty-four months no further attachment could be made under that decree. By Section 3 of Act IX of 1937 it was further provided that the amendments made by Section 2 of that Act (which I have summarised above) shall not have any effect in respect of proceedings arising out of suits instituted before June 1, 1937. It must be noticed, therefore, that if a creditor had filed his suit before June 1, 1937, he could enforce his decree by attaching half the salary above Rs. 80 and moreover his right to continue execution was not stopped at the end of twenty-four months. By reason of the amendment, creditors who filed suits subsequently had only restricted rights as mentioned in the amended section.

(3.) THE decision in Manicklal Venilal v. Lakha and Mansing was approved. Applying the same test to the present facts it seems to me that the other decree-holders could not have reached that portion of the money which the plaintiff and creditors Nos. 3 and 8 alone are in a position to reach. If so, they have no right to share by way of rateable distribution in that amount. On that ground I think the plaintiff's contention must succeed. THE rateable distribution in respect of the amount in Court mentioned in the1 certificate of the Prothonotary will have to be worked out in the light of this, judgment.