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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.HARILAL, C.S. DIAS, JJ.
Abdul Sathar, S/o. Mohammed Kunju – Appellant
Versus
Pathimuthu, D/o. Kunjasan – Respondent
OP (FC).No.324 of 2019
Decided on : 29-01-2020
Whether the Pensions Act,1871 was applicable in the territories which immediately before 1st November 1956 were comprised in the Part-B States?, as Section 1 of the Act excludes its operation in the erstwhile Part-B States-The petitioner and the respondents are residing within the said territory-Held: wife and children do not fall within the fold of the exemption to Section 60 (1) of the Code, as family pension fund that is payable to the family/dependents of the pensioner is exempted from attachment only by a person falling outside the purview of family. The above provision is almost analogous to Rule 124 of Kerala Service Rules – Part III. Our findings on Rule 124 is equally applicable to Section 60 (1) (g) of the Code. So there is no legal bar for the respondents 2 and 3 to attach the stipend and gratuity of the petitioner.
Statement of facts:
Is a father’s pensionary benefits exempted from being disbursed towards arrears of maintenance payable to his children is the question that emerges for consideration in this original petition.
Finding of the court:
Wife and children do not fall within the fold of the exemption to Section 60 (1) of the Code, as family pension fund that is payable to the family/dependents of the pensioner is exempted from attachment only by a person falling outside the purview of family. The above provision is almost analogous to Rule 124 of Kerala Service Rules – Part III. Our findings on Rule 124 is equally applicable to Section 60 (1) (g) of the Code. So there is no legal bar for the respondents 2 and 3 to attach the stipend and gratuity of the petitioner.
Result:
Dismissed
Key Points: - The main issue is whether a father's pensionary benefits are exempt from attachment for maintenance arrears owed to his children [15000482850002]. - The Kerala High Court held that the Pensions Act, 1871 does not apply to the petitioner's pension from KSRTC, as it is governed by Kerala Service Rules - Part III, not the Act, due to territorial exclusions for non-Union pensions [15000482850015][15000482850026]. - Rule 124 of Kerala Service Rules exempts pensions from attachment by creditors, but wife and children are not "creditors" as maintenance is a statutory obligation, not a debt [15000482850027][15000482850040]. - Section 60(1)(g) of CrPC exempts family pension funds from attachment only by persons outside the family; thus, children can attach the father's stipend and gratuity for maintenance [15000482850047][15000482850048]. - The court dismissed the petition, rejecting exemptions, and directed release of withheld amounts to the children, criticizing the father's dilatory tactics [15000482850045] (!) . - Maintenance rights of children have precedence over pension exemptions under Rule 124 and Section 60(1)(g) CrPC [15000482850048].
JUDGMENT :
Dias, J.
“It has been said the difficulties of a litigant begin when he has obtained a decree” observed the Honourable Supreme Court in Shyam Singh v. Collector, District Hamirpur, U.P and Others [1993 Suppl. (1) SCC 693].
2. Shyam Singh (supra) comes to our minds on hearing the two-decade anguish of the children of the petitioner in realising maintenance from him.
3. Is a father’s pensionary benefits exempted from being disbursed towards arrears of maintenance payable to his children is the question that emerges for consideration in this original petition.
4. The congealed facts are: The petitioner is the judgment debtor in E.P.No.65/2014 in O.S No.183/2005 of the Family Court, Attingal. The respondents in the original petition are the petitioner's wife, son, and daughter, respectively.
5. The respondents had filed O.S 183/2005 against the petitioner seeking maintenance allowance for the respondents 2 and 3.
6. Despite receipt of summons, the petitioner did not choose to contest the proceeding. The petitioner was set ex-parte. The Family Court passed a decree on 30.12.2011, directing the petitioner to pay monthly maintenance allowance to the respondents 1 and 2 at the rate of Rs.2,000/-each. Although the petitioner filed an application to set aside the ex parte decree, the application was dismissed.
7. The 1st respondent filed E.P. No.65/2014 (Ext.P1) to execute the decree. An application was also filed to direct the petitioner's employer – the Kerala State Road Transport Corporation (K.S.R.T.C) to withhold the pensionary benefits payable to the petitioner. Subsequently, as per the order in E.A.81/2017, the Family Court directed the K.S.R.T.C to deposit an amount of Rs.1,94,533/-.
8. The petitioner had challenged the order before this Court in O.P (FC) 435/2014. This Court, by judgment dated 30.1.2017, held that the Family Court had not committed any error in directing the K.S.R.T.C to deposit the arrears of maintenance. Nevertheless, this Court directed the petitioner to approach the execution court.
9. Taking a cue from the above observation, the petitioner filed E.A No.1/2019 before the Family Court, to keep all further execution proceedings in abeyance, and that the deposited amount may not be disbursed to the respondents. The respondents opposed the application.
10. The Family Court, by the impugned Exhibit P-5 order, dismissed the application, and allowed E.A No.81/2017, permitting the respondents to withdraw the amount of Rs.1,94,533/-deposited by K.S.R.T.C.
11. The Family Court observed in the impugned order as follows: “the original petition was instituted on 25.4.2001 before the Family Court, Thiruvananthapuram. After the present court was constituted, the case was transferred and renumbered as O.S 183/2005. The suit was decreed on 30.12.2011. The petitioner had filed an application to set aside the ex-parte decree, which was allowed on condition that the petitioner deposits the entire arrears of maintenance. The petitioner failed to comply with the conditional order, and consequentially the application was dismissed. The petitioner challenged the order before the High Court in O.P(FC) No.435/2014. The High Court dismissed the original petition. As per the decree, a total amount of Rs.3,70,000/-is due from the petitioner to the respondents. In E.A No.81/2017 filed by the 1st respondent to direct the K.S.R.T.C to deposit the withheld amount and disburse it to the respondents, the petitioner had stated that he had no objection. The petitioner's pensionary benefits are not attached but only directed to be withheld; therefore, there is no violation of any statutory provision.”
12. It is challenging the above order, that this original petition is filed under Article 227 of the Constitution of India.
13. Heard Sri.M.Rajendran Nair, the learned counsel for the petitioner and Sri.Latheesh Sebastian, the learned counsel for the respondents.
14. The learned counsel for the petitioner argued that by virtue of Section 11 of the Pen
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