R VENKATARAMANA Vs. K VENKATESWARA RAO PATNAIK

JUDGEMENT

(1.) This revision is directed at the instance of the defendant in the suit against the order dated 21-9-1992 passed by the II Additional Subordinate Judge, Visakhapatnam allowing I.A. 294/92, in O.S.332/90, on his file., and restricting the attachment to an extent of Rs. 48,000/- out of the retirement benefits payable to the petitioner herein and subject to Section 60. C.P.C.

(2.) The facts leading to the filing of this petition are briefly as follows :- The defendant borrowed Rs.10,000/- from the plaintiff on 21-5-1987, Rs.l5,000/-on 22-7-1987 and Rs. 8,000/- on 11-8-1987 for his domestic expenses agreeing to repay the said amounts with interest at rate of Rs.2/- per mensem per hundred. The defendant executed promissory notes in his own handwriting in favour of the plaintiff. Subsequently in spite of several demand s mad e by the plaintiff the defendant failed to pay the amounts. Therefore, the plaintiff filed the suit against the defendant for recovery of Rs. 39, 433- 04 basing on the three demand promissory notes. He has also filed another suit O.S. 578/90 against the defendant for a sum of Rs.17,200/- basing on a promissory note dt. 21-5-1987. The defendant is an employee in Hindustan Shipyard Limited, Visakhapatnam. The Management of the Hindustan Shipyard limited, Visakhapatnam has offered voluntary retirement scheme for the employees and in response to it the defendant has opted for the retirement under the said scheme for retirement by 31-5-1992. By virtue of his pre-mature retirement the defendant had to get a lumpsum amount of more than Rs. One lakh. According to the plaintiff in case the defendant received the said amount and leaves the jurisdiction of the court, it would be very difficult for him to realise the suit amount from the defendant. According to the plaintiff, the defendant has to get from his employer about Rs.40,000/- towards provident fund, Rs.25,000/- towards gratuity, about Rs.50,000/- towards voluntary retirement benefit, Rs.2,000/- towards L.T.C. and Rs.3,000/- towards leave encashment. The plaintiff therefore filed the petition under Order 38 Rule 5 C.P.C. to direct the respondent to furnish security to the said amount together with costs and in the meanwhile to order attachment of the above said amounts payable to him.

(3.) The defendant denied the allegations made in his affidavit and he stated that the plaintiff has no prima facie case The defendant states that the plaintiff completely misled the court and misused the process of law by making false allegations The defendant has further stated in his counter that the voluntary retirement benefits are wholly exempted under Section 60 (g) of the Civil Procedure Code and that the plaintiff misled the court and obtained an ex parte order which is liable to be raised.