Exemption from salary attachment under Section 60 must be duly considered in execution proceedings, specifically regarding the criteria for issuing warrants of arrest.

JUDGMENT

First judgment debtor in E.P.No.309 of 2009 in O.S.No.318 of 1999 of the Court of learned Additional Sub Judge, North Paravur is the petitioner challenging Exts.P2 and P3, orders. A decree for money was passed against petitioner and others and in favour of the respondent. Respondent sought execution in E.P.No.309 of 2009. It appears that though notices under Rules 22 and 37 were served on petitioner, he did not respond on time. That was followed by the executing court passing order to issue warrant of arrest to the petitioner on 09.11.2010. Thereafter petitioner appeared in the executing court and filed E.A.No.870 of 2011 purportedly under Secs.47 and 151 of the Code of Civil Procedure (for short, "the Code”) to recall the warrant of arrest. That application was dismissed by Ext.P2, order. Later, petitioner filed E.A.No.974 of 2011 for review of Ext.P2, order. That application was dismissed by Ext.P3, order. Thus Exts.P2 and P3, orders are under challenge.

2. Learned counsel for petitioner contends that it was without sufficient evidence that the executing court ordered warrant of arrest to the petitioner. It is submitted that though petitioner is a salaried man the executing court did not take into account exemptions from attachment from the salary while considering means of petitioner.

3. Learned counsel for respondent submitted that it is admitted that petitioner is a salaried person and that his monthly salary as seen from Ext.P4 comes to `.34,716/-. It is contended by learned counsel that the deductions made from the monthly salary on account of other loans are not liable to be deducted under Sec.60 of the Code. It is also contended that E.A.No.974 of 2011 is not maintainable since E.A.No.870 of 2011 was in effect to review the order dated 09.11.2010 issuing warrant of arrest to the petitioner and an application for review of an order of a review is not maintainable under Rule 9 of Order 47 of the Code.

4. So far as the last argument of learned counsel for respondent is concerned, I am inclined to accept it. For, though E.A.No.870 of 2011 is styled as one under Secs.47 and

151 of the Code to recall the warrant of arrest, it is in effect a request to review the order dated 09.11.2010. If that be so, in view of the bar under Rule 9 of Order 47 of the Code the subsequent application for review would not lie. Hence, though not for the above reason, there is no reason to interfere with the ultimate order dismissing E.A.No.974 of 2011.

5. What remains is whether Ext.P2, order on E.A.No.870 of 2011 requesting to recall (review) of the order dated 09.11.2010 is required to be interfered with. It is not disputed that the executing court acted on the affidavit of respondent to find means of petitioner. It is also not disputed that though petitioner was served with notice under Rule 37 of Order XXI of the Code, no warrant of arrest as contemplated under sub rule (2) of Rule 37 of Order XXI of the Code was issued to the petitioner on his not responding to the notice served under Rule 37(1) of Order XXI. The question whether from the monthly salary of petitioner any amount is liable to be exempted under Sec.60 of the Code is required to be decided by the executing court. In the circumstance, I am inclined to interfere with Ext.P2, order and allow I.A.No.870 of 2011 but subject to condition.

Resultantly this original petition is disposed of as follows:

(i) Though not for the reason stated by the executing court, the challenge to Ext.P3, order is dismissed.

(ii) Ext.P2, order is set aside and E.A.No.870 of

2011 will stand allowed subject to the following conditions:

(a) Petitioner, if he has not complied with the order dated 06.09.2011 of this Court directing deposit of `.50,000/- shall deposit the said amount in the executing court within one week from this day.

(b) Petitioner shall deposit a further sum of `.50,000/- (Rupees Fifty Thousand Only) in the executing court within a month from this day.

(c) On compliance of the above condition