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HIGH COURT OF CALCUTTA
S. C. Lahiri, B. K. Guha
DIVISIONAL ACCOUNTS OFFICER, EASTERN RAILWAY - Appellant
Versus
RADHA KISSEN KHAITAN - Respondent
Civil Revn. Case 2545 Of 1956
Decided On : JUNE 18, 1957
CIVIL PROCEDURE CODE - ORDER 21, RULE 48 AND ORDER 21, RULE 52 - ATTACHMENT OF SALARY - EXEMPTION - SALARY DEDUCTIONS - ARREARS OF SALARY - LIABILITY OF GOVERNMENT OR RAILWAY ADMINISTRATION.
Fact of the Case:
The petitioner, a Divisional Accounts Officer, challenged two orders of attachment under Order 21, Rule 48 and Order 21 Rule 52 of the Civil Procedure Code. The first order attached the salary of the judgment-debtor, a railway engine driver, from May 1955 onwards, while the second order attached a sum of Rs. 3000/- held by the petitioner on behalf of the judgment-debtor. The petitioner objected to the attachment of the salary on the ground that it was exempted under Section 60 of the Civil Procedure Code, and to the attachment of the sum of Rs. 3000/- on the ground that it included a part of the salary for July and August 1954, which was also exempted under Section 60.
Finding of the Court:
The court held that the attachment of the salary from May 1955 onwards was valid as it fell outside the period of exemption claimed by the judgment-debtor. As for the attachment of the sum of Rs. 3000/-, the court held that the part of it which represented deductions from the salary for July and August 1954 was not exempted from attachment because it did not constitute salary within the meaning of Section 60. The court also held that the petitioner could not raise the point of exemption for the first time in the appeal, as he had not raised it in his objection filed before the executing court.
Issues: 1. Whether the salary of the judgment-debtor was exempted from attachment under Section 60 of the Civil Procedure Code? 2. Whether the sum of Rs. 3000/- held by the petitioner was exempted from attachment under Section 60 of the Civil Procedure Code? 3. Whether the petitioner could raise the point of exemption for the first time in the appeal?
Ratio Decidendi: 1. The court held that the salary of the judgment-debtor was not exempted from attachment under Section 60 of the Civil Procedure Code because the attachment was made from May 1955 onwards, which fell outside the period of exemption claimed by the judgment-debtor. 2. The court held that the sum of Rs. 3000/- held by the petitioner was not exempted from attachment under Section 60 of the Civil Procedure Code because the part of it which represented deductions from the salary for July and August 1954 did not constitute salary within the meaning of Section 60. 3. The court held that the petitioner could not raise the point of exemption for the first time in the appeal, as he had not raised it in his objection filed before the executing court.
Final Decision: The court discharged the Rule with costs to opposite party No. 1.
( 1 ) THIS Rule has been obtained by the Divisional Accounts Officer, Eastern Railway, Dinapore, against two orders of attachment under Order 21, Rule 48 and Order 21 Rule 52 of the Civil Procedure Code. The facts which are undisputed are these :
( 2 ) OPPOSITE party No. 1 obtained a decree for money against opposite party No. 2 who is the driver of a railway engine under the Eastern Railway and levied execution of that decree in Money Execution Case No. 2 of 1955 of the 3rd Court of the Subordinate Judge at Alipore. In that execution case, the decree-holder opposite party No. 1 obtained an order for attachment of the salary of opposite party No. 2 from the month of May, 1955 and a further order of attachment of a sum of Rs. 3000/- which was held by the petitioner on behalf of the opposite party No. 2. The order of attachment of the salary was obtained under Order 21, Rule 48 and the order of attachment of the sum of Rs. 3000/- was obtained under Order 21, Rule 52 of the Civil Procedure Code. The petitioner, who is the disbursing officer of the Eastern Railway, objected to the two orders of attachment on different grounds. With regard to the attachment of the salary, the objection raised was to the effect that as the salary of the judgment-debtor was under a continuous order of attachment for more than 24 months till August, 1953, the judgment-debtor was entitled to a respite for a period of 12 months up to August, 1954, under the provisions of the proviso to Clause (1) of Section 60 of the Civil Procedure Code. The objection to the attachment of the sum of Rs. 3000/- was to the effect that this sum included a part of the salary of the judgment-debtor for the months of July and August, 1954 which was exempted from attachment under the proviso to Clause (1) of Section 60. It is conceded by the decree-holder opposite party No. 1 that the salary of the judgment-debtor upto the month of August, 1954 is exempted from attachment but it is claimed by the decree-holder that the amount which is held in deposit by the petitioner does not represent the salary of the judgment-debtor within the meaning of Section 60 of the Civil Procedure Code. The salary of the judgment-debtor has been attached with effect from the month of May, 1955 and consequently it is outside the period of exemption claimed by the judgment-debtor and there can be no objection to that order. With respect to the attachment of the sum of Rs. 3000/-, Mr.
Bose, appearing for the petitioner, has contended before us that that part of this sum which represents the deductions from the salary of the petitioner for the months of July and August, 1954, should be excluded from attachment. It has been found by the executing court that the sum of Rs. 3000/- is made up of deductions made from the salary of the judgment-debtor from month to month at a certain percentage and it has also been found that this sum includes the deductions made from the salary of the judgment-debtor for the months of July and August, 1954. Upon this finding, Mr. Bose has contended that that portion of Rs. 3000/- which consists of the deductions from the salary for the months of July and August, 1954 should be exempted from attachment. The contention is that the salary of the judgment-debtor does not lose its character because a part of it has been deducted and held in custody by the disbursing officer in a separate account. Mr. Chatterji, appearing for the decree-holder opposite party, on the other hand, has contended that as soon as a part of the salary is deducted from the salary and held in a separate account, it loses its character of a salary and becomes attachable and that the proviso to Clause (1) of Section 60 of the Code of Civil Procedure has no application. We are of opinion that the argument of Mr. Chatterji must be accepted. A salary represents the total monthly remuneration received by an employee for services rendered by him to his employer and a part of it cannot be said to be h
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