MANILAL BHAICHAND Vs. MOHANLAL MAGANLAL

JUDGEMENT

(1.) This second appeal raises an important question regarding the exemption of salaries from attachment in execution of a decree under Section 60(1) of the Civil Procedure Code. The appellant filed Suit No. 1063 of 1936 against the respondent on October 5, 1936, and obtained a money decree on August 31, 1937. The respondent is a clerk in a mill, and the appellant filed darkhast No. 1 of 1943, on January 4, 1943, to execute his decree and recover the decretal amount by attachment of the respondent's salary, which, according to the darkhast application, was Rs. 105 per month. The respondent contended that his salary was only Rs. 62, and not Rs. 105, that it was not liable to attachment under Section 60(1) of the Civil Procedure Code, and that in any case all that could be attached was half of the excess of the salary over Rs. 100. The executing Court found that Rs. 105, which the respondent received from the Mill, consisted of Rs. 62 as his pay, and Rs. 43 or so as dearness allowance. It held that dearness allowance was not liable to attachment under the Government of India Notification No. 1489-D/43, Home Department, dated April 29, 1943, and that, in spite of the amendment of Section 60(1), proviso, Clause (h), of the Civil Procedure Code, by Act No. IX of 1937, under Section 3 of the latter Act the amendment was not applicable to the present case as the darkhast proceedings arose out of a suit instituted before June 1, 1937. The respondent was found to have worked at night in the months of February, March and April, and received an extra salary of Rs. 15 per month. The executing Court further held that under Section 60 (1), proviso, Clause (i), of the Civil Procedure Code, before its amendment by Act No. IX of 1937, the first forty rupees out of the pay were exempt from attachment. Thus deducting Rs. 40 from the salary of Rs. 62, it ordered the attachment of the remaining Rs. 22 every month and Rs. 37 for those months during which he worked at night. The total amount thus attached came to Rs. 243 only, and a prohibitory order was accordingly issued to the mill company in respect of that amount. The learned District Judge, however, thought that by the amendment made in Section 60 of the Civil Procedure Code by Act No. V of 1943 the whole amount of the respondent's salary was exempt from attachment. He, therefore, dismissed the darkhast with costs.

(2.) Both the Courts below have committed serious errors in reading the Notification of the Government of India and the wording of the amending Acts. It is not disputed here that out of the salary of Rs. 105 received by the respondent his pay was only Rs. 62 and the remainder was paid to him by the mill company by way of dearness allowance. The Notification of the Government of India, which is quoted in the order of the executing Court, exempts from attachment dearness allowance under Clause (l) of the proviso to Sub- Section (1) of Section 60 of the Civil Procedure Code. That clause purports to exempt from attachment any allowance forming part of the emoluments of any public officer or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and it does not apply to any allowance received by private employees. The executing Court thought that the Government of India could issue a notification even in respect of the dearness allowance paid by mill companies to their employees. But Clause (1) of the proviso to Section 60(1) clearly refers to an allowance forming part of the emoluments of any public officer or of any servant of a railway company or local authority. It must, therefore, be held that dearness allowance received by a private employee from his employer is not exempt from attachment by reason of the said Notification of the Government of India.

(3.) The executing Court has fallen into another error of a similar kind in thinking that out of the pay of Rs. 62, only Rs. 22 can be attached. Prior to the amendment of 1937, Clause (i) of the proviso to Section 60(1) exempted from attachment the salary of a public officer or a servant of a railway company or local authority to the extent of forty rupees monthly where the salary exceeded forty rupees, and did not exceed eighty rupees monthly. The benefit of the clause was not available to a private employee. In fact before the amendment of 1937, no part of the pay of such an employee, who was not a labourer or a domestic servant, was exempt from attachment. The learned District Judge has committed an error in regarding the salary of the respondent as the wages of a labourer or domestic servant wholly exempt from attachment under Clause (h) of the proviso to Section 60(1) of the Civil Procedure Code. The evidence shows that the respondent is a clerk in one of the departments of the mill, and does no manual labour. According to the ruling in Kulkarni V/s. Ganpat Hiraji [1942] Bom. 287 a clerk like the judgment-debtor cannot be regarded as a labourer or a domestic servant. The view taken by the learned District Judge is obviously incorrect, and is not pressed in this Court.