ORDER :

Heard the learned counsel for the revision-petitioner. None appeared for the respondent though notice served.

2. Learned counsel for the revision-petitioner would submit that this revision-petition is directed against the Order, dated 08.02.2016 in E.P.No.36 of 2015 in O.S.No.118 of 2011 on the file of Senior Civil Judge’s Court, Razole, whereunder the Trial Judge observed that the decree-holder has to recover the remaining amount due under the decree by filing execution petition under Order XXI Rule 48 of the Code of Civil Procedure, 1908 (for brevity “CPC”) after a gap of twelve (12) months, though, earlier under the same decree, the salary was attached continuously for a period of twenty four (24) months, and accordingly, dismissed the execution petition filed by the revision-petitioner under Order XXI Rule 37 of CPC.

3. Learned counsel would submit that in view of Section 60 (i) of CPC, the decree-holder cannot file execution petition under Order XXI Rule 48 of CPC for attachment of salary of the judgment-debtor after it was attached continuously for a period of twenty-four (24) months earlier and therefore, the Trial Court committed material irregularity.

4. He would further submit that the decree-holder can choose his own mode of execution as per Section 51 of CPC and in that view of the matter also, the Order of the Trial Court is not valid in law.

5. In the light of above circumstances, the point that would arise in the revision-petition is as under: -

“Whether the Execution Court committed any material irregularity in the Order, dated 08.02.2016 passed in E.P.No.36 of 2015 in O.S.No.118 of 2011?”

6. POINT: -

It is an admitted fact that the revision-petitioner earlier filed E.P.No.25 of 2012 under Order XXI Rule 48 of CPC and salary of the respondent/judgment-debtor was attached continuously for a period of twenty-four (24) months and a sum of Rs.1,48,990/- was recovered in the said execution petition. The remaining amount due under the decree is Rs.1,10,228/-. Hence, the revision-petitioner filed another execution petition i.e., E.P.No.36 of 2015 under Order XXI Rule 22 and 37 of CPC to detain the judgment-debtor in civil prison, alleging that the respondent/judgment-debtor did not repay the balance amount to defeat the decree, though he is having/had means to discharge the decree amount.

7. The judgment-debtor before the Trial Court opposed the execution petition on the ground that the matter was settled for a sum of Rs.1,25,000/-.

8. Admittedly, the judgment-debtor is a salaried employee, and he is having salary income. The learned Trial Judge did not decide the issue i.e., whether judgment debtor has means to discharge the balance amount due under the decree? If so, whether he is not discharging the same with a malafide intention to defeat the decree? Learned Trial judge did not consider the truth and validity of the plea of judgment debtor stated supra.

9. In the impugned Order Trial Court held that the decree-holder to recover the remaining amount due under the decree, after a gap of twelve (12) months, he can file another execution petition under Order XXI Rule 48 of CPC and dismissed the present execution petition. This is not defence of the judgment debtor. Therefore, the learned trial judge instead of deciding the issue in the case misdirected himself and erroneously dismissed the petition, ignoring the statutory law and established legal principles on this subject.

10. Section 60 Clause (i) of CPC reads as under:

60. Property liable to attachment and sale in execution of decree:

(i) salary to the extent of [the first [one thousand rupees] and two third of the remainder] [in execution of any decree other than a decree for maintenance:

Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelv