Bind Basni Prasad, J. - (1.) This is a Letters Patent Appeal arising out of a matrimonial suit for judicial separation. The facts are as follows : On 30th January 1951, Mrs. King brought a suit against her husband, S.M. King, who was an engine driver in the East Indian Railway, praying for a decree for judicial separation, alimony and custody of the children and order for their maintenance. After the progress of the suit up to a certain stage, a compromise was reached between the parties and it was filed in the Court on 17th July 1951. The relevant terms of the compromise were as follows : "(a) That both the petitioner and the respondent have agreed to go to U. K. together or wherever it may be so decided to live together with their children. (b) That out of the sum of Rs. 18,450 to the account of the respondent's provident fund money in the Railway, about which an injunction was issued to the Railway by this Hon'ble Court, the respondent agrees to give Rs. 13,000 to the petitioner including cost of suit to be placed at her account at the Grindlays Bank, Bombay, and a sum of Rs. 5,000 to be placed at the account of the three minor daughters to be kept in trust for them at the Grindlaya Bank, Bombay, and to be given to each of them equally on attaining majority. (c) That the petitioner agrees not to claim any maintenance or allowance for her and for the minor children in future, or for the past and agrees to maintain and look after her three minor children properly and relieves the respondent from any responsibility for payment on this account. (d) That the petitioner agrees to bear all costs of the suit and the respondent will not be liable to pay any such costs of the petitioner or her debts or liabilities on her behalf. (e) That the petitioner agrees to withdraw her suit mentioned above on payment of all costs of parties settled at Rs. 1,000 and agrees that the said amount be paid in Court by the Railway out of the amount of Rs. 13,000 to be transferred to Grindlays Bank on her account."
(2.) It may he mentioned that along with the plaint a petition was presented by Mrs. King for an injunction to Mr. King to restrain him from withdrawing Rs. 18,450 out of his provident fund deposited with the Railway Administration. The same day a learned Judge of this Court ordered a temporary injunction to restrain Mr. King from withdrawing the sum of Rs. 18,450 from his provident fund and the Railway Administration from paying the same to him. When the compromise was filed this Court passed the following order : "The petition is allowed to be withdrawn. The railway administration shall be ordered to send a sum of Rs. 13,000 to Grindlays Bank Limited, Bombay, to be deposited to the credit of the petitioner and a sum of Rs. 5,000 to be deposited to the credit of the three minor children named in the petition. The balance of Rs. 450 shall be released. No order as to costs."
(3.) When the order was communicated to the Railway Administration it applied to the Court for the recall of the order passed on 17th July 1951. In the affidavit filed in support of the application it was mentioned that according to the rules of the fund an employee of the Railway is entitled to 90% of the provident fund due to him on his proceeding oh leave preparatory to retirement and the balance of 10% is payable when he finally retires from the service. Mr. King took leave preparatory to retirement from 1st December 1960 and was thus entitled to get 90% of his provident fund from the Railway Administration. The total sum due to him under the provident fund account was Rs. 29,184. The Railway Administration mentioned that in compliance with the Court's order Rs. 18,450 out of the provident fund money had been withhold. It was contended that under Section 3, Provident Funds Act, 1925, provident fund money is not in any way capable of being assigned 'or charged and is not liable to attachment under any decree or order of any Court in respect of any debt or liability incurred by the subscriber or depositor, and that under Section 4 of the said Act the provident fund money is payable to the subscriber or the depositor and in the event of his death to his nominee. It was pointed out that in view of these statutory provisions, the Railway Administration was not in a position to send the money to the Grind lays Bank or deposit in the name of Mrs. King or of her minor children, because the statute casts a duty upon the Railway Administration to pay the money only to the depositor or the subscriber.;