The judgment established the interpretation of Section 11, Pensions Act, and its application to the attachment of a pension in execution of a money decree.

Somayya, J.

1. The respondent obtained a money decree against the appellant under which a sum of about Rs. 16,000 is said to be still due. The respondent applied for arrest of the appellant in execution of his decree. The appellant pleaded that by virtue of the provisions of Section 51, Civil P.C., as amended in 1936 he could not be arrested. Clause (b) of the proviso to Section 51 and the explanation are relied upon. Clause (b) of the proviso so far as it is necessary for this case runs thus:

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied....that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.

The explanation runs thus:

In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.

The appellant is a pensioner getting Rs. 129 per mensem. The decree was passed in October 1937 in C. S. NO. 137 of 1935 on the file of the Original Side of the High Court, Madras. The execution petition which now comes before me was filed in 1941. The case of the appellant is that the amount which he receives month by month is exempt from attachment under Section 11, Pensions Act, and that therefore under Clause (b) of the proviso read with the explanation set out above, the appellant is to be considered to have no means of paying the amount of the decree or a substantial portion thereof. In reply the decree-holder pointed out that even if the defendant had paid a sum of Rs. 25 or thereabouts from the date of the decree, more than Rs. 1000 would have been paid by the date of the execution petition and that that sum would be a substantial portion of the decree within Clause (b) of the proviso to Section 51. Both the lower Courts came to the conclusion that the appellant cannot be said to have no means to pay the amount of the decree or a substantial portion of it.

2. In second appeal the appellants learned advocate urges that under Section 11, Pensions Act, the amount paid to his client is really exempt from attachment. A similar question arose for decision before Ramesam and Cornish JJ. in Ranganayaki Ammal v. Official Assignee, Madras A.I.R. 1931 Mad. 797. The question there was whether under Section 3, Provident Funds Act, 19 of 1925, a compulsory deposit paid over to the subscriber was, after it was paid over to him, beyond the reach of the Official Assignee. The subscriber had become an insolvent and his property had been vested in the Official Assignee. The insolvent received a large sum by way of Provident Fund and paid it over to his wife. The question was whether the Official Assignee of Madras was entitled to recover that sum. Reliance was placed on Section 3, Provident Funds Act, and it was argued that under that section the Official Assignee could not recover that amount. Section 3, Provident Funds Act, runs thus:

A compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any civil, revenue or criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the official assignee nor any receiver appointed under the Provincial Insolvency Act, 1920, shall be entitled to, or have any claim on any such compulsory deposit.

Section 11, Pensions Act, with which we are directly concerned is similar in terms and it runs thus:

No pension granted or continued by Government ...