The provident fund amount and income tax deductions should not be deducted from the non-attachable portion of the salary, as they are already covered by Section 60(1)(k) of the Civil Procedure Code. The dearness allowance is exempt from attachment under Note 2 to Section 231 of the Bihar Treasury Code.

Rai, J.

1. Pacts necessary for the consideration of the points raised in this appeal may be shortly stated as follows :

2. Gouri Shanker Lall, the present respondent I, obtained in Title Suit No. 69 of 1949/50 of the Court of the Additional Subordinate Judge, 5th Court, Patna, a decree against Pashupati Nath Sarkar, the present appellant, and A. C. Majumdar, the present respondent 2, for a sum of Rs. 6,209/11/9. The decretal sum represented the amount of damages claimed by the plaintiff from the defendants for their wrongful possession of the house and for their having removed some moveables of the plaintiff from the premises in their forcible occupation. On 27-1-1953, the decree-holder executed the decree in Execution Case No. 5/38 of 1952/53. In that execution case the decree-holder sought to attach Rs. 250.00 per month out of the salary of Pashupati Nath Sarkar and Rs. 125/- per month out of the salary of A. C. Majumdar. Pashupati Nath Sarkar, the present appellant, filed an objection which gave rise to Miscellaneous Case No. 42 of 1953 which was ultimately dismissed on contest by the decree-holder on 7-4-1954. Pashupati Nath Sarkar thereafter filed before this Court the present Miscellaneous Appeal.

3. Learned Counsel for the appellant submitted that the substantive pay of Mr. Sarkar on the relevant date was Rs. 570.00 and he was also drawing cost of living allowance of Rs. 99/12/-. Accordingly to him under the provisions of Sec. 60 (1)(i), Civil P. C. Rs. 335/- out of the substantive pay of Rs. 570.00 could not be attached. He further submitted that the amount of provident fund paid by the appellant under the Provident Funds Act, 1925 and also the amount of income-tax deducted at source in accordance with the provisions of Sec.18, Income-tax Act should be held not attachable in accordance with the provisions of Sec. 60(1)(k), Civil P. C. He urged that these two amounts must be deducted out of the remaining amount of Rs. 235/-. He contended that his client was entitled to an accumulative deduction granted to him by both the Sub-clauses (1) and (k) of Section 60(1), Civil P. C. He further submitted that the dearness allowance of Rs. 99/12/- should not be added to the substantive pay of Rs. 570.00 for finding out the amount attachable under Sec. 60, Civil P. C.

4. In support of his first proposition, Mr. Ghosh relied on the decision in the case of Municipal Corporation of Rangoon V/s. Ram Behari AIR 1939 Rang 432 (A) where Baguley, J. had held that the amount of provident fund payable by the judgment-debtor could be tagged to the amount non-attachable under Sub-clause (i), Sec. 60(1), Civil P. C. That is to say after deducting both the items mentioned under Sub-clauses (i) and (k), the remaining salary could be attached. Mr. Ghosh referred in this connection to the Judgment in the case of -- Bhagwan Dass Ramprosad V/s. Secretary of State, AIR 1941 Pat 157 (B). He relied on the following portion of the judgment in that case :-

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"Disbursing officers are now-a-days required by the Income-tax Act to deduct income-tax at the source, and therefore this portion of the salary may be said to be beyond the disposal of the salary holder. But there is nothing in Clause (i) to indicate that the salary mentioned there is the net salary. It may be that the duty cast by statute upon the disbursing officer to deduct the income-tax due operates, in relation to Clause (i), like a summary attachment and realization out of the attachable proportion of the salary. But it may also be that the legislature did not intend to throw the income-tax on the attachable proportion of the salary and leave the salary-holder a clear Rs. 100.00 a month plus one moiety of the excess."

But this observation of Dhavle J. is of no assistance to the appellant because he made it clear in the following line that it was not necessary for him to pronounce definitely on that point in that case. This decision, therefore, cannot be an authority in support of the co