IMPORTANT POINT
It cannot be said that attachment of salary cannot be made on the ground that it would cause a black mark on the service of the petitioner or it would affect the service record.

K.T. Sankaran, J.—The respondent instituted O.S. No. 349 of 2004, Munsiff’s Court Thodupuzha against the petitioner and his wife for damages for malicious prosecution. The suit was decreed for a sum of Rs. 50,000/- and the decree was confirmed in appeal.

2. The respondent levied execution. He prayed for realising the decree amount by arrested and detention of the petitioner, by attachment of his salary and if the amount is not realised by the same, by attachment and sale of the immovable property belonging to the petitioner.

3. As a first step the decree holder prayed for attaching the salary of the petitioner. The decree holder contended that the attachable portion of the salary is Rs. 4,025/- per month. The petitioner herein contended that the attachable portion is Rs. 3,450/-per month. The court below held that the attachable portion of the salary is Rs. 3,546/-, by the order impugned in this Writ Petition.

4. An interim stay was granted in the Writ Petition on 26.11.2009 on condition of deposit of Rs.10, 000/-. It is submitted by the petitioner that the said amount was deposited.

5. The main grounds raised in the Writ Petition are the following:

“B) Court below ought to have found that the petitioner is an unfortunate victim of cheating. It was out of sympathy and believing the word of the respondent he gave evidence deviating from his previous version. Now that version is being used as a weapon against him.

C) Court below ought to have considered the fact that he is a public servant and if the attachment is made from his salary directly it will affect his service records.”

6. The learned counsel for the petitioner submitted that in the criminal case, the offence alleged against the respondent (decree holder) was under S. 354 of the Indian Penal Code and the allegation was that he outraged the modesty of the wife of the petitioner. At the time of trial of the criminal case, on the servant appeal made by the respondent (accused), the petitioner and his wife deposed in such a way which led to the acquittal of the respondent. I do not think that these contentions could be considered by the executing court. If at all the petitioner could raise these contentions, it could be raised only in the Trial Court and before the appellate court. The petitioner cannot raise these contentions in execution. A contention which ought to be raised in the trial of the suit, if not so raised, cannot be raised in execution. Had petitioner and his wife raised such a contention in the suit and it was not accepted, then also, they are barred from raising the same in execution. Therefore, I am not inclined to accept the aforesaid contention raised by the petitioner.

7. The other contention raised by the petitioner that if attachment of his salary is made, it would affect his “service records” and it would be “a black mark on his service”, is equally unsustainable. When a decree is passed against the petitioner, he is bound to comply with the decree and pay the decree amount to the decree holder. He need not wait for execution of the decree. Execution would be levied only on the failure of the judgment debtor to pay the decree amount. Attachment of salary is a mode of execution. When execution is levied by attachment of salary, necessarily, the amount would be deducted from the salary of the judgment debtor. Such attachment of salary is under due process of law. It cannot be said that attachment of salary cannot be made, on the ground that it would cause “a black mark on the service” of the petitioner or it would affect the “service records” of the petitioner. Such a defence is not available to the judgment debtor. If such contentions are entertained and accepted, no decree holder would be entitled to proceed with the execution of the decree in his favour by the attachment of the salary of the judgment debtor. The contention raised by the petitioner is quite alien to the defences which are available under Section 60 of the Code of Civil P