V V SUBBA RAO Vs. MOHAMMAD HUSSAIN KHAN
LAWS(APH)-1963-11-1
HIGH COURT OF ANDHRA PRADESH
Decided on November 22,1963

V.V.SUBBA RAO Appellant
VERSUS
MOHAMMAD HUSSAIN KHAN Respondents

JUDGEMENT

- (1.) This revision petition is directed against an order of the Subordinate Judge, Guntur, given on 23rd March, 1963. The respondent, who is the decree-holder, filed an execution petition for the realisation of the decretal amount. He sought the attachment of the salary of the judgment-debtor who is admittedly not a public servant, but a private servant. The judgment-debtor took an objection in the Court below that his salary cannot be attached under section 60 (i) of the Civil Procedure Code in advance. Rejecting that contention the Subordinate Judge held that the attachment takes effect and will be operative only with reference to the actual date of payment as the deduction is only made on the date of payment. It is this view of the Subordinate Judge which is assailed before me.
(2.) The contention of Mr. Dhanurbhanudu, the learned counsel for the petitioner, is that in view of the language of section 60 (i) read with the first Explanation^ that section anticipatory attachment in regard to salaries payable to private servants cannot be issued. I find sufficient force in this contention. In order to appreciate the merits of this contention it is essential to look into section 60 (i) and the first Explanation. Section 60 first enumerates the property which is liable to be attached and sold in execution of a decree. Proviso to that section however mentions properties which cannot be attached or sold. In that category of properties exempted from attachment the provision (i) is in the following terms: " Salary to the extent of the first hundred rupees and one half the remainder in execution of any decree other than a decree for maintenance ; "
(3.) I am not concerned with the Proviso to sub-section (i). The first Explanation is in the following terms : "The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or alter they are actually payable and in the case oi salary other than salary of a servent of the Government or a servant oi railway company or local authority the a ttachable portion thereof is exempt from attachment until it is actually payable," It is, I think, not out of place to consider the antecedents of the said provision of section 60. Before the amendment of the section by Act IX of 1937 there was no provision for exempting from attachment the salary of persons in private employment and hence the salaries of these persons were not exempt from attachment to any extent. The above Act amended the section by introducing the provision in exempting from attachment the salaries of private employees also to a partial extent. This exemption was embodied in clause (h). Clause (i) dealt with salaries of public servants and persons in service of railway company and local bodies. The provision of the salary in regard to which exemption was given in regard to persons in private service is the same as in the case of public servants. By Act V of 1943 the provision as to the exemption of salaries contained in clause (h) was amended and clause (i) was enlarged so as to include all salaries, whether of public servants or persons in private employment. This did not however make any real change in the legal position. It would be clear from a reading of clause (i) that that clause exempts to a partial extent the salaries of the persons from attachment.;


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