Gratuity payable to a deceased employee is attachable as part of the estate, provided it was not received by the employee before death, distinguishing it from cases of received gratuity.

JUDGMENT :

RAVINDER DUDEJA, J.

1. This is a petition under Article 227 of the Constitution of India challenging the impugned order dated 04.12.2019, passed by the learned Civil Judge-09, Central District, Tis Hazari Court, Delhi in Execution Petition No. 95677/2016, whereby the Executing Court issued directions for release of the death gratuity amount of Rs. 2,39,762 /- to the respondent.

2. The facts in brief are that respondent filed a suit for recovery of amount of term loan which was taken by late Sh Pranab Kumar Chaudhary against four defendants.

3. Vide judgment dated 18.04.2007, the learned Trial Court passed the ex parte decree in the sum of Rs 89,689/- alongwith pendent-lite and future interest @16% till its realization. The decree was ordered to be drawn against defendant Nos. 2 & 3 only as defendant No.1 had died on 15.05.2005 and was deleted from the array of parties. No order was passed against the petitioner.

4. The respondent filed an Execution Petition No. 157/2007 tilted as Canara Bank vs Mala & Anr against defendant Nos. 2 & 3 in the suit seeking execution of the ex-parte decree dated 18.04.2007.

5. Vide order dated 12.04.2013, the Executing Court directed that the terminal benefits cannot be attached in execution of a civil decree. Section 60 (g), (k) and (ka) of the Code of Civil Procedure,1908 [“CPC’] bars the attachment of stipend, gratuity and deposits in the Provident Fund as CPC gives blanket protection to the amount lying in the terminal benefits of any person from attachment. The learned Executing Court while passing this order placed reliance on the case of Radhey Shyam Gupta vs Punjab National Bank 2009 (1) SCC 376.

6. Vide subsequent order dated 17.11.2015, while relying on the decision in the case of Ramwati vs Krishan Gopal & Ors, 34 (1988) DLT 136, the Court was of the view that decree holder bank is entitled to the release of those benefits and passed orders for issuance of warrants of attachment of terminal benefits of Sh Pranab Kumar Chaudhary being held by the employer after his demise. It is this order which has been challenged in the present petition.

7. Sh. Mehandru, learned counsel for the petitioner submits that order dated 17.11.2015 is in complete contravention of the principles of res judicata because the question “as to whether the gratuity and the other terminal benefits payable to Sh Pranab Chaudhary, husband of Judgment Debtor No.1 and father of Judgment Debtor No.2 by the employer and held by employer after demise of Sh Pranab Chaudhary can be released to the Decree Holder in satisfaction of the judgment and decree in question” stood finally decided by the same predecessor Court vide order dated 12.04.2013.

8. Learned counsel further submits that the death gratuity of Sh Pranab Chaudhary was immune from attachment in view of Clause (g) of the proviso to Section 60 CPC. He submits that since there was no claimant to the gratuity, the same could be forfeited by the petitioner and by operation of Rule 52 of the Central Civil Services (Pension) Rules, the gratuity would lapse in favour of the petitioner.

9. Per contra, Mr. Malik, learned counsel for the respondent submits that gratuity is immune from attachment under Clause (g) of the proviso to Section 60 CPC only if it was received by the employee concerned. In the present case, he submits that the gratuity has not been received by Sh Pranab Kumar Chaudhary and insofar as his legal heirs are concerned, they would be entitled to receive the gratuity only as part of the estate of Pranab Kumar Chaudhary which