RAJA KIRTYANAND SINGH BAHADUR Vs. SAILESWAR SEN

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Bhagalpore passed in a simple money suit refusing attachment before judgment of a decree obtained by the defendant of the suit against the plaintiffs. The facts are that one Mr. S. Sen was for some time the principal of the T.N.J. College at Bhagalpore. For some reason or other his services were dispensed with. Under the rules of the College he was to make compulsory deposits in the Provident Fund maintained by the College. After his services were dispensed with, Mr. Sen instituted a suit in the Original Side of the Calcutta High Court for realisation from the College authorities of the Provident Fund amount due to him. Thereafter the Governing Body of the College (who are the appellants before us) instituted in the Court of the Subordinate Judge at Bhagalpore a suit claiming about Rs. 15,000 from Mr. S. Sen for his malfeasance or misfeasance during his incumbency as the Principal of the College. The Calcutta High Court issued an injunction against the defendants of the suit before it, i.e. the appellants, directing them, not to proceed with the Bhagalpore suit till the disposal of the suit in Calcutta. Therefore the trial of the Bhagalpore suit was held up. It now appears that the Calcutta suit has been decreed for Rs. 5,700 on account of the principal Provident Fund and for Rs 6,000 as costs (we are informed, but there is no material before us to verify it that this Rs. 6,000 as costs is subject to the lien of the attorneys of Mr. Sen for the sum advanced by them towards the prosecution of the suit). Be that as it may, the plaintiffs of the Bhagalpore suit applied to the Subordinate Judge under Order 38, Civil P. C, for calling upon the defendants to furnish security and failing which for an order of attachment of the decree for Provident Fund which Mr. Sen had obtained against them at Calcutta. The learned Subordinate Judge refused this application and the plaintiffs have preferred this appeal.

(2.) The learned Subordinate Judge refused the prayer of the plaintiffs mainly on the ground that the decree really represented the Provident Fund money which is still in the hands of the employers who are the managers of the Fund and is not attachable under the provisions of the Provident Fund Act 1925, read with Section 60(k), Civil P.C. Mr. Manohar Lal who has appeared on behalf of the appellants has contended first, that the exemption from attachment is confined to Government Provident Funds and the fund in question is not such a fund. Now Section 3 of Act 19 of 1925, which with certain modifications subsequently made is the Provident Fund Act now in force, enacts that: A compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositer, and neither the Official Assignee nor any receiver appointed under the Provincial Insolvency Act, 1920, shall be entitled to, or have any claim on, any such compulsory debt.

(3.) Section 60, Civil P.C. enumerating the various properties not liable to attachment, mentions in Clause (k): All compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act 1897 for the time being applies in so far as they are declared by the said Act not to be liable to attachment.