even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code = merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retiral benefits paid to the appellant.

HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.1657 of 2012

13-9-2012

L. Rajendra Naidu

A.K.Dass

Counsel for petitioner : Sri M. Rama Krishna for Sri A.K. Jayaprakash Rao

Counsel for respondent : Sri Srinivas Ambati for Sri Nimmagadda Satyanarayana

<GIST:

>HEAD NOTE:  

?CASES REFERRED:    
1. AIR 2009 S.C. 930
2. AIR 1976 S.C. 1163

ORDER:
        This Civil Revision Petition is filed against order dated 27-3-2012 in
I.A.No.109/2012 in O.S.No.8/2012 on the file of the learned Senior Civil Judge,
Puttoor.
        The petitioner filed the above mentioned suit for recovery of money from
the respondent.  He has filed I.A.No.109/2012 under Order XXXVIII Rule 5 of the
Code of Civil Procedure, 1908 (for short "the Code"), for attachment of the
retirement benefits of the respondent before Judgment.  The respondent resisted
the said application by placing reliance on proviso (g) to Section 60(1) of the
Code and the Judgment in Radhey Shyam Gupta Vs. Punjab National Bank and    
another1.  The lower Court accepted the plea of the respondent and dismissed the
application on the ground that the retirement benefits having been exempted
under the provisions of Section 60(1) of the Code, cannot be attached.
        At the hearing, the learned Counsel representing Sri A.K. Jayaprakash Rao,
learned counsel for the petitioner, submitted that in Union of India Vs. Jyothi
Chit Fund and Finance2, the Supreme Court held that once the retirement benefits
reach the hands of the judgment-debtor, they no longer retain that character and
they become his personal money.
        A perusal of the order of the lower Court shows that the respondent has
placed reliance on the Judgment in Radhey Shyam Gupta (1-supra) wherein the
Supreme Court has reviewed the case law and held at paras 24 and 25 as under:
        "Having considered the submissions made on behalf of the respective
parties, we are inclined to accept Mr. Mehta's submission that the order
impugned in the revision petition before the High Court did not attract the bar
of the proviso to sub-section (1) of Section 115 of the Code as it sought to
finally decide the manner in which the decree passed in Suit No. 66 of 1992 by
the learned Additional and Sessions Judge, Bayana, Rajasthan, was to be
satisfied. However, we are also of the view that having regard to proviso (g) to
Section 60(1) of the Code, the High court committed a jurisdictional error in
directing that a portion of the decretal amount be satisfied from the fixed
deposit receipts of the appellant held by the Bank. The High Court also erred in
placing the onus on the appellant to produce the Matador in question for being
auctioned for recovery of the decretal dues. In other words, the High Court
erred in altering the decree of the trial Court in its revisional jurisdiction,
particularly when the pension and gratuity of the appellant, which had been
converted into Fixed Deposits, could not be attached under the provisions of the
Code of Civil Procedure. The decision in the Jyoti Chit Fund case (supra) has
been considerably watered down by later decisions which have been indicated in
paragraphs 15 and 16 hereinbefore and it has been held that gratuity payable
would not be liable to attachment for satisfaction of a Court decree in view of
proviso (g) to Section 60(1) of the Code.
We also agree with Ms. Shobha that the High Court could not have gone behind the
decree in the execution proceedings and the alteration in the manner of recovery
of the decretal amount was erroneous and cannot be sustained. We also agree with
Ms. Shobha that even after the retiral benefits, such as pension and gratuity,
had been received by the appellant, they did not lose their character and
continued to be covered by proviso (g) to Section 60(1) of the Code. Except for
the decision in the Jyoti Chit Fund and Finance case (supra), where a contrary
view was taken, the consistent view taken thereafter support the contention that
merely because of the fact that gratuity and pensionary benefits had been
received by the appellant in cash, it could no longer be identified as such
retiral benefits paid to the appellant." (Emphasis added)
        Even though there are seemingly conflicting views of the Supreme Court in
the above referred Judgments, the lower Court has rightly chosen to follow the
later Judgment holding the field.  Moreover, in Radhey Shyam Gupta (1-supra),
the Supreme Court has referred to the Judgment in Jyothi Chit Fund and Finance
(2-supra) and opined that the view taken in the said Judgment was not accepted
in the subsequent Judgments.  Therefore, I do not find any jurisdictional error
in the order of the lower Court in dismissing the application filed by the
petitioner.
        The Civil Revision Petition is accordingly dismissed.
        As a sequel, interim order dated 4-4-2012 is vacated and CRPMP
No.2211/2012 is disposed of as infructuous.            
________________________  
Justice C.V. Nagarjuna Reddy
Date : 13-9-2012