The main legal point established in the judgment is that the calculation of the attachable portion of a salary under S.60(1)(i) of the CPC should consider specific exemptions for certain allowances, as established in relevant case law.

M.R. Hariharan Nair, J.

The revision petitioner, 'who is the Judgment Debtor in O.S. No. 190/91 which is under execution in the Munsiff's Court, Irinjalakuda, is aggrieved that his application filed before the Court seeking to raise the attachment from his salary at the rate of Rs.330/- per mensem has been turned down by that court.

2. The contention of the petitioner, who is a postman, based on a salary certificate dated 24.7.99 produced along with C.M.P. No. 709/2000, is that for the purposes of S.60 of the Code of Civil Procedure his salary has to be taken as only Rs.3,720/- consisting of Rs. 3,575/- as basic pay, Rs. 70/- as personal pay and Rs. 75/- as travelling allowance. According to him, the other elements relating to Dearness Allowance-Rs.1,144/- and Rs.179/- House Rent Allowance are not part of the salary for the purpose of S.60 of the C.P.C. The other contention of the petitioner is that the total amount recovered from his salary towards various decrees and also towards revenue recovery for the amounts due to the K.S.F.E. is Rs. 4.045/- even excluding the attachment in the present case and this is beyond the attachable portion of his salary. The learned counsel further submits that if correctly calculated in accordance with the guidelines in S.60(1)(i) of the CPC, the total attachable portion will be Rs. 1,107/- as against Rs. 4,375/- which is being deducted now including the attachment in the present case.

3. The learned counsel for the respondent submitted that the petition is hit by res judicata in view of the fact that only three months before filing the present petition, a similar application filed by the same petitioner before the execution court was dismissed on the merits. In this regard, the affidavit dated 17.3.1999 produced as Annexure R(1)(a) along with counter to C.M.P. no. 709/2000 is relied on. With reference to another salary certificate produced by the present respondent as Annexure R1(b) along with the same counter it is argued that there have been subsequent attachments also as aforementioned and that while fixing the amount attachable in the present case, the later attachments can only be ignored.

4. A perusal of the impugned order shows that the aspect of res judicata and the exact attachable amount have not been considered by the execution court. On the other hand, it took the view that the garnishee is the person who has to deduct the attachable portion from salary and send it to the court and mere attachment over the salary will not prejudice the right of the Judgment Debtor in moving the garnishee. If there is no attachable portion of salary, it was held, he has to keep the order till the expiry of the previous attachment and continue the subsequent attachment till the realisation of the decree debt. On the other hand, if there is attachable portion of salary, the garnishee will have to implement the order and-send the amount to the court. It was from the above perspective that the execution court dismissed the application of the Judgment Debtor.

5. During hearing the learned counsel for the revision petitioner relied on Form No. 19 prescribed under appendix-e of the C.P.C. in support of his contention that no discretion is available with the garnishee and that once the attachment order reaches the garnishee, he is bound to implement it irrespective of the question whether there is attachable portion of the salary available or not. The said contention cannot be accepted in full in view of the provision in 0. 21, R.48(2) of the C.P.C. which provides as follows:

"(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment."

It is obvious from the above that even if th