The salary of a judgment-debtor, once paid to him, is not exempt from attachment or sale in execution of a maintenance decree, and can be taken into account in determining the judgment-debtor's means to pay the decree.

JUDGMENT - 1. This is an appeal under Clause 10 of the Nagpur Letters Patent against the order of Mr. Justice P.P. Deo upon leave granted by that Judge. The matter arises out of execution proceedings. The appellant judgment-debtor before us, Pralhad Gangadhar Joshi, is the husband of the respondent Smt. Sakhubai wife of Pralhad Joshi. The parties were married sometime in 1940. In July 1949 the husband married a second time. Thereafter, it appears that he neglected to look after his first wife, the respondent, and so she filed a suit for maintenance in 1950. She obtained a decree for maintenance on 11-4-1951. By this decree she was given a monthly allowance of Rs. 20/- for her own maintenance plus Rs. 2/- for rent of accommodation suitable for her. The decree also awarded Rs. 400/- as arrears of maintenance. The respondent then commenced execution on 3-8-1951 out of which the present appeal arises. Upto this day, the appellant, her husband, has not paid a single pie towards the maintenance decree except a sum of Rs. 100/- in two instalments of Rs. 50/- each, which he was compelled to pay under orders of this Court as a condition precedent to the grant of stay of execution. Having availed of that advantage he has not paid subsequent instalments either and claims that the execution cannot proceed against him.

2. The relief which the respondent asked for in execution was by way of arrest of the appellant. An objection was raised, relying upon the proviso and the explanation to section 51 of the Code of Civil Procedure, that the judgment-debtor had not the means to pay the amount of the decree or a substantial part thereof, and that therefore he could not be arrested having regard to the provisions of clause (b) of the proviso to Section 51 read with the explanation to that section.

3. In order to determine this objection, it is necessary to state some further facts. The appellant is in the employ of the Khamgaon Municipal Committee where he is a clerk. He was at the material time in receipt of a salary, including allowances, of Rs. 84/- per month. Under Section 60, sub-section (1), Clause (i) as it stood on the date of the filing of the execution application, the salary to the extent of the first hundred rupees and one-half the remainder was exempt from attachment. Subsequently, the clause has been split up in two clauses as follows :

" (i) salary to the extent of the first hundred rupees and one-half the remainder in execution of any decree other than a decree for maintenance;

(ia) One-third of the salary in execution of any decree for maintenance."

Thus, it will be seen that the Legislature specifically had in mind the case of execution of maintenance decrees in which case it made a distinction. In the case of execution of maintenance decrees there was no minimum amount of the salary mentioned as being exempt from attachment. Whatever the amount of the salary, it is liable to attachment subject only to the condition that one-third of it shall be exempt from attachment; whereas in the case of decrees other, than maintenance decrees, the salary itself must as a whole be above Rs. 100/- in order to be attachable and over Rs. 100/- only one-half of the remainder is attachable.

4. The question as to the effect of clause (i) or (1a) of sub-section (1) of Section 60, does not directly arise in the present case. The question arises only in an ancillary manner, because the appellant has invoked in his favour the provisions of proviso (b) to Section 51 read with the explanation thereof. The effect of this provision is that a judgment-debtor a against whom an application for his arrest or detention in prison is made, cannot be ordered to be so detained unless he is given an opportunity of showing cause why he should not be committed to prison and the Court is satisfied that the judgment-debtor has, or had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refuse

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