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IN THE HIGH COURT OF ANDHRA PRADESH
A.V.SESHA SAI, B.KRISHNA MOHAN, JJ.
P.Sundararao, S/o Chinnarao - Petitioner
Versus
Shriram City Union Finance Ltd., Rep. by its GPA holder, K.Vasu and Ors - Respondents
Civil Revision Petition No.545 of 2019
Decided On : 19-10-2020
CIVIL REVISION PETITION - ARBITRATION - ENFORCEMENT OF AWARD - ATTACHMENT OF SALARY - LEGAL REPRESENTATIVE - PROPERTY OF THE DECEASED - SECTION 52 OF CPC - SALARY RECEIVED ON COMPASSIONATE APPOINTMENT - NOT PROPERTY OF THE DECEASED - NOT ATTACHABLE OR DEDUCTIBLE.
Fact of the Case:
Petitioner, son of the third respondent, was impleaded as fourth respondent in an arbitration proceeding initiated by the first respondent against the second respondent for default in payment of a loan. The arbitrator passed an award directing the respondents to pay a certain amount with interest and costs. The first respondent filed an execution petition to enforce the award by attaching the salary of the judgment debtors, including the petitioner. The trial court allowed the execution petition and ordered the attachment of the petitioner's salary.
Finding of the Court:
The court held that the petitioner's salary, which he was receiving from the government on compassionate appointment, could not be treated as property or the estate of the deceased (petitioner's mother) as stipulated in Section 52 of CPC. Therefore, it was neither attachable nor deductible under Order XXI Rule 48 CPC.
Issues: 1. Whether the petitioner is entitled to maintain the present Civil Revision Petition without assailing the Award passed by the Arbitral Tribunal and without participating in the Execution Proceedings? 2. Whether the salary which the petitioner (appointed under compassionate appointment scheme) is receiving from his employer is the property or the estate of the deceased and whether the said salary is attachable in execution?
Ratio Decidendi: 1. The court held that the petitioner could maintain the revision petition even though he had not participated in the arbitration proceedings or the execution proceedings, as he was raising a pure question of law regarding the attachability of his salary. 2. The court relied on various judgments of the Supreme Court and the High Courts to hold that the salary received by the petitioner on compassionate appointment was not the property or the estate of the deceased and, therefore, could not be attached or deducted in execution of the decree.
Final Decision: The court allowed the civil revision petition and set aside the order of the trial court to the extent of the petitioner. However, it clarified that the order did not preclude the decree-holder from proceeding against any property of the deceased that was in the possession of the petitioner.
ORDER:
A.V.SESHA SAI, J.
1. Judgment-Debtor No.4 in E.P.No.44 of 2018 in A.O.P.No.507 of 2012 on the file of the Court of the learned Judge, Family Court-cum-III Additional District & Sessions Court, Srikakulam is the petitioner in the present revision filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, ‘CPC’).
2. In brief, the circumstances leading to filing of the instant Civil Revision Petition are as infra:
2.1 In view of the default committed by the second respondent herein, in payment of the loan amount, first respondent herein pressed into service the provisions of Arbitration and Conciliation Act, 1996 (for brevity, ‘the Act’) and filed a claim statement under Section 23 of the said Act. Initially, proceedings were initiated, impleading three respondents. Subsequently, vide order, dated 06.09.2013, petitioner herein, who is the son of the third respondent, was impleaded as fourth respondent. Eventually, the learned sole Arbitrator passed an Award, dated 31.12.2014, in A.O.P.No.507 of 2012 and the operative portion of the said Award, at paragraph No.10, reads as follows:
“10 (a)In the result award is passed directing the respondents to pay Rs.3,42,830/-with subsequent interest at 6% p.a. on 2,00,000/-from 04.08.2012 i.e. the date of presentation of claim petition till the date of realization and to pay costs of Rs.10,408/-(rupees ten thousand eight hundred and eight only).
b. Respondents are jointly and severally liable to pay the amounts.
c. The award shall be enforced under the code of CPC 1908 in the same manner as if it is the decree of civil Court as per Section 36 of Arbitration and Conciliation Act, 1996”.
2.2. Seeking enforcement of the said Award, first respondent-Decree-Holder filed E.P.No.44 of 2018 in A.O.P.No.507 of 2012 for recovery of a sum of Rs.3,92,609/-by way of attachment of salary of the Judgment-Debtors.2 and 4 (petitioner herein) on the file of the Court of the Judge, Family Court-cum-III Additional District and Sessions Court, Srikakulam. The learned Judge, by way of an order, dated 18.12.2018, allowed E.P.No.44 of 2018 and operative portion of the said order, at paragraph No.9, reads as follows:
“In the result, Execution Petition is allowed. The garnishee of Judgment-Debtor No.2 i.e. Mandal Educational Officer, Srikakulam and Garnishee of Judgment-Debtor No.4 i.e. Medical Officer, Pathapatnam Mandal, Srikakulam are hereby directed to attach the salary of Judgment-Debtors 2 and 4 and deduct the same from the month of January, 2019 as per Order XXI Rule 48 read with Section 60 CPC and send the same to the Decree-Holder company’s account i.e. Decree-Holder-company is hereby directed to furnish the details of its bank account to the garnishees of Judgment-Debtors 2 and 4 respectively. The Decree-Holder company is directed to communicate the same to garnishees of Judgment-Debtors 2 and 4”.
This revision challenges the validity and the legal sustainability of the said order.
3. Heard Sri G.V.S.Kishore Kumar, learned counsel for the petitioner, and Sri Kunchem Maheswara Rao, learned counsel for the first respondent-Decree-Holder, apart from perusing the entire material available on record.
4. It is contended by the learned counsel for the petitioner that the impugned order, to the extent of the Judgment-Debtor No.4-petitioner herein, is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Sections 51 and 52 of CPC. It is further stated that, since the salary which the Judgment-Debtor No.4-petitioner herein is getting from the compassionate appointment is not the property of Judgment-Debtor No.3-mother of the petitioner, the salary of the petitioner cannot be attached and deducted. The learned counsel relies on the following judgments:
1. 1991 (1) SCC 725.
2. Judgment of Chattisgarh High Court, dated 10.10.2017, in F.A.M.No.177 of 2015.
3. 2008 (1) ALD 392.
4. AIR 2018 SC 5034.
5. On the contrary, it is contended by the learned counsel for the first re
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