PASHUPATI NATH SARKAR Vs. GOMI SHANKER LALL

JUDGEMENT

(1.) Pacts necessary for the consideration of the points raised in this appeal may be shortly stated as follows :

(2.) Gouri Shanker Lall, the present respondent I, obtained in Title Suit No. 69 of 1949/50 of the Court of the Additional Subordinate Judge, 5th Court, Patna, a decree against Pashupati Nath Sarkar, the present appellant, and A. C. Majumdar, the present respondent 2, for a sum of Rs. 6,209/11/9. The decretal sum represented the amount of damages claimed by the plaintiff from the defendants for their wrongful possession of the house and for their having removed some moveables of the plaintiff from the premises in their forcible occupation. On 27-1-1953, the decree-holder executed the decree in Execution Case No. 5/38 of 1952/53. In that execution case the decree-holder sought to attach Rs. 250/- per month out of the salary of Pashupati Nath Sarkar and Rs. 125/- per month out of the salary of A. C. Majumdar. Pashupati Nath Sarkar, the present appellant, filed an objection which gave rise to Miscellaneous Case No. 42 of 1953 which was ultimately dismissed on contest by the decree-holder on 7-4-1954. Pashupati Nath Sarkar thereafter filed before this Court the present Miscellaneous Appeal.

(3.) Learned Counsel for the appellant submitted that the substantive pay of Mr. Sarkar on the relevant date was Rs. 570/- and he was also drawing cost of living allowance of Rs. 99/12/-. Accordingly to him under the provisions of Section 60 (1)(i), Civil P. C. Rs. 335/- out of the substantive pay of Rs. 570/- could not be attached. He further submitted that the amount of provident fund paid by the appellant under the Provident Funds Act, 1925 and also the amount of income-tax deducted at source in accordance with the provisions of Section 18, Income-tax Act should be held not attachable in accordance with the provisions of Section 60(1)(k), Civil P. C. He urged that these two amounts must be deducted out of the remaining amount of Rs. 235/-. He contended that his client was entitled to an accumulative deduction granted to him by both the Sub-clauses (1) and (k) of Section 60(1), Civil P. C. He further submitted that the dearness allowance of Rs. 99/12/- should not be added to the substantive pay of Rs. 570/- for finding out the amount attachable under Section 60, Civil P. C.