Once the gratuity amount devolves on the legal representatives as the asset of the deceased, it loses its exempt status and becomes liable to attachment for the realization of the amount due from the judgment-debtor.

Varghese Kalliath, J.

A question of some difficulty arises in this case. Petitioner before us is a decree-holder. The respondents are the legal representatives of the judgment.-debtor. Petitioner secured a decree for Rs.5,000/- with interest. This amount of Rs.5,000/- was borrowed by the wife of the 2nd respondent. The wife of the 2nd respondent and the petitioner were teachers in St. John Bosco's l.ower Primary School.

2. Petitioner instituted a suit, O.S. No. 1142/86 and obtained a decree. Petitioner filed an execution petition for realisation of an amount of Rs.7,627.75 as E.P. No. 676/87. Petitioner wanted to attach the provident fund and gratuity amounts due to the deceased wife of the 2nd respondent. It is in evidence that the 1st respondent, i.e., the deceased wife of the 2nd respondent is entitled to get an amount of Rs.11,000/- as provident fund and nearly an amount of Rs.17,000/- as gratuity. This amount has to be obtained from the Assistant Educational Officer, Cherpu. The respondents contended that the amounts are not liable to be attached in view of the provisions contained inS.60(1)(g) of the Code of Civil Procedure. The court below considered the question and found that the amount is not liable to be attached. The decree-holder, the petitioner is aggrieved and she has filed the Civil Revision Petition. The matter was referred by one of us for the decision of a Division Bench.

3. The contention raised by the petitioner before us is that even though the gratuity amount is an amount exempted from attachment under S.61(1)(g) of the Code of Civil Procedure, that exemption is not available to the legal heirs of the person who earned the gratuity amount. In this case, admittedly the deceased wife of the 2nd respondent earned the gratuity amount and when that amount is payable by the Department, the person who earned the gratuity amount is not in a position to receive it, since she has left this world leaving only her estate to be represented by her legal representatives. So naturally the amount can be claimed only by the legal representatives as the asset of the deceased. The question is when once this amount devolves on the legal representatives as amount earned by the deceased whether the same exemption granted under S.60(1)(g) of the Code of Civil Procedure survives. S.60(1)(g)of the Code of Civil Procedure reads thus:

"60(1)(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer or payable out of any service family pension fund notified in the Office Gazette by the Central Government or the State Government in this behalf, and political pension".

4. Counsel for the respondents contended that the gratuity amount remains as gratuity amount with the Department and that it retains the character of gratuity and so it is not liable to be attached in view of S.60(1)(g) of the Code of Civil Procedure. At the first blush, it is a very attractive argument. But on a closer scrutiny, we feel that the argument is not sustainable. Though the amount has not been paid to the legal representatives on account of the prohibitory order passed in this proceedings, the reality is that the amount has to be paid by the Department to the respondents herein. The further reality is that the amount represents the earnings of the deceased wife of the 2nd respondent. The mere fact that the amount has not been paid may not be of much consequence, since it cannot be paid because of the prohibitory order passed by this Court. In all cases of attachment of salaries or such kinds of amounts in the hands of a third party, the attachment is effected by a prohibitory order.

5. The question that has to be considered is that when once the gratuity amount becomes an asset of the deceased person still it can be stated as gratuity amount and still that amount will retain the character of gratuity, so as to get exemption under S.60(1)(g) of the Code of Civil Procedure. When it is said that t