GANGADHARA MENON Vs. GOVERNMENT OF KERALA
HIGH COURT OF KERALA
GOVERNMENT OF KERALA
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(1.)THE 2nd defendant is the appellant. This appeal arises from an order of the lower court directing the arrest of the 2nd defendant in execution of the decree, in case he fails to deposit Rs. 5/- every month for payment to the decree-holder. THE claim against the appellant was in respect of the court fees payable in a suit filed in forma pauperis, and in E. P. No. 160/1961 the State applied for issue of warrant for the arrest of the 2nd defendant on the ground that he had sufficient means to pay the decree amount and had failed to pay the same. 2nd defendant is a conductor of a bus getting rs. 54/- as salary and Rs. 14 0 as daily allowance for 20 days in a month; altogether, therefore, he is getting about Rs. 80/- a month by way of salary and allowance.
(2.)THE 2nd defendant contended that he had no means to pay the decree amount or any portion thereof and that he should not be arrested in execution of the decree.
The lower court came to the conclusion that as the 2nd defendant was getting a monthly salary of Rs. 80/- he had means to pay the decree amount, and directed him to pay Rs. 5/- every month, and in case of default of the same, for issue of warrant for his arrest.
Now the contention of the appellant is that the order of the court below is wrong as he is a person who has no means to pay the decree amount or any substantial portion thereof. Under S. 51 it is imperative that in order that a court may issue a warrant to arrest a judgment-debtor, there must be a finding that he is possessed of sufficient means to pay the decree amount or a substantial part thereof, and has refused or neglected to pay the same. There is an explanation to S. 51 and the explanation reads as follows: "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. " Under S. 60 (1) salary to the extent of the first hundred rupees and one-half of the remainder is exempt from attachment in execution of a decree other than a decree for maintenance. It is contended that as the salary of the petitioner is exempt from attachment it should not have been taken into account in determining his means to pay the decree debt. That contention, we think, is correct. We think that the salary upto the first hundred rupees, being exempt from attachment, it should not have been taken into account in determining his means to pay the decree debt. But it was contended for the respondent that the allowance which the 2nd defendant is getting, not being salary, is liable to be attached and can be taken into consideration for deciding the question whether he has got means to pay the decree amount. Explanation (2) to S. 60 reads as follows: "in clauses (h) and (it, "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave. " We think that the allowance which the appellant is getting in this case is exempt from attachment, because it also forms part of his salary. It is included within the term "total monthly emolument" and therefore, we think, that the allowance given to the petitioner cannot be taken into consideration for deciding the question whether he has got the means to pay the decree amount. We hold that the petitioner is not liable to be arrested in execution, and that the order passed by the lower court is wrong. We therefore, set aside that order and allow this appeal. In the circumstances of the case we make no order as to costs. Allowed.
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