The petitioner is the decree holder of money suit O.S.No.111 of 2013 on the file of Junior Civil Judge, Jammalamadugu filed against the respondent-judgment debtor, who is a retired railway Gangman, Railway Kondapuram Village and Mandal and the petitioner filed EP No.1 of 2014 to recover the decretal debt and for attachment under Order 21 Rule 52 of C.P.C. and also to recover the amount lying with Andhra Bank, Gooty Branch in the account of the judgment debtor supra.

The respondent - judgment debtor opposed the prayer for attachment with counter contest as can be seen from paragraph No.3 of the order of the lower court in saying ‘no amount lying in Bank account apart from he is retired employee eking out livelihood by getting meager pension and has no means to discharge E.P. amount and the other contention is plea for discharge of E.P. amount in seeking to dismiss the execution petition. The decree holder himself examined as PW.1 and on behalf of the judgment debtor RW.1 – railway employee working in the cadre of Office Superintendent, RW.2 – Manager, Andhra Bank, Gooty besides the judgment debtor-RW3 were examined. He placed reliance Exs.X1 to X.4 documents which are details of payments of service benefits particulars and Statement of account of judgment debtor. It is from the said evidence on record that after hearing the learned Junior Civil Judge by order dated 09.07.2015 dismissed the application of the decree holder saying the amount lying in the bank account sought for attachment comprising of retirement benefits of judgment debtor including provident fund, gratuity and commutation which are exempted under Section 60 (g) and (k) of C.P.C. and thereby cannot be attached much less to withhold and sent for. For that conclusion, the learned Junior Civil Judge placed reliance on the expression of the Apex Court in Radhey Shyam Gupta Vs. Punjab National Bank and another (AIR 2009 SC 930), particularly from paragraph 33, which reads as follows:

“…33. However, we are also of the view that having regard to proviso (g) to Section 60 (1) of the Code, the High Court committed a jurisdictional error in directing that a portion of the decretal amount be satisfied from the fixed deposit receipts of the appellant held by the Bank. The High Court also erred inplacing the onus on the appellant to produce the Matador in question for being auctioned for recovery of the decretal dues. In other words, the High Court erred in altering the decree of the trial Court in its revisional jurisdiction, particularly when the pension and gratuity of the appellant, which had been converted into fixed deposits, could not be attached under the provisions of the Code of Civil Porcedure. The deicision in Jyoti Chit Fund case had been considerable watered down by later decisions which have been indicated in para 22 herein before and it has been held that gratuity payable would not be liable to attachment for satisfaction of a Court decree in view of proviso (g) to Section 60 (1) of the Code".

In paragraph No.35 the Apex Court observed as follows:

“35. We also agree with Ms. Shobha that even after the retrial benefits, such as pension and gratuity, had been received by the appellant, they did not lost their character and continued to be covered by proviso (g) to Section 60 (1) of the Code. Except for the decision in Jyothi Chit Fund and Finance case, where a contrary view was taken, the consistent view taken thereafter supports the contention that merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retrial benefits paid to the appellant.”

Now the said order is impugned by the decree holder by the present revision petition with contentions on the ground that judgment debtor reached super annuation two years back and still he cannot proclaim to get any protection under Section 60 (g) and (k) of C.P.C., as the funds are merged in the common pool in the bank acc