SURYANARAYANA RAO Vs. PADI THOYAJAKSHAMMA

JUDGEMENT

(1.) The judgment-debtors Nos. 1 and 3 are the appellants. This Civil Miscellaneous Second Appeal arises out of the order in E. P. No. 142/1974 in O. S. No. 1093-1972, District Munsifs Court, Rajahmundry. The decree-holder (respondent) filed the execution petition under Order. 21, Rule. 48 of the Civil Procedure Code for attachment of the salary of the judgment-debtors who are non-gazetted railway employees. The question that arose for consideration in the Courts below and that arises for consideration now is whether what is called running allowance paid to the judgment-debtors who are non-gazetted employees of the Railway and which is paid on the basis of mileage for their travel in the moving train is salary and therefore liable to be attached under the relevant provisions of Section 60 read with Order. 21, Rule. 48, Civil Procedure Code. The two Courts below have held that the allowance which is paid by way of running allowance comes within the meaning of Clause (i) Section 60(1). Explanation II of the Civil Procedure Code. The contention of the judgment-debtors was thus negatived and it was held that the running allowance was liable to be attached.

(2.) Under Clause (1) of Section 60 Civil Procedure Code salary is one of the item which can be attached in execution of a decree. Clause (i) under the proviso to Clause (1) of Section 60 of the Civil Procedure Code states that salary to the extent of the first Rs. 200 and one half of the remainder in execution of any decree other than a decree for maintenance is not liable to be attached. Under Clause (1), any allowance forming part of the emoluments of any servant of a Railway Company may by notification in the Gazette be declared as exempt from attachment. Explanation II attached to Clause (1) of Section 60 of the Civil Procedure Code states:

(3.) The question, therefore, is whether this running allowance is declared exempt from attachment by reason of any notification in the Gazette by the Railway administration. It is not stated before me that there is any notification exempting running allowance.