J.M.L.Sinha, J. - (1.) THIS is a decree-holder's second appeal aris ing out of execution proceedings.
(2.) THE material facts are as follows: Sri B. P. Tandon and Sri Brijeshwari Prasad Tandon, hereinafter to be called 'decree-holder-appellant's, filed a suit for recovery of a sum of Rs.2,592.56 against Nawab Mehdi Ali Khan, now substituted by his heirs, and Mohammad Mehdi Ali Khan. A compromise was entered into between the parties during the pendency of the case in the trial court, and the suit was decreed in accordance with that compromise. It 'may be relevant to mention here some of the terms of that compromise which were as follows: (i) That the decretal amount shall be payable by the defendants in monthly instalments of Rs.50.00. The first instalment being payable on 1st June, 1969. (ii) That the defendants shall also pay Rs.500.00 from each of the commutations granted to them from time to time. (iii) That the interest of the interim period on the decretal amount from 1-11-68 to 31-5-1969 will be charged at the rate of 2% per month. (iv) That if the decretal amount is paid as per terms stated above, the plaintiff shall be entitled for decretal amount with interest at Rs.1% per mensem and in the case of any of the defaults, the interest shall be chargeable at 2% per mensem on the decretal amount and the plaintiff shall be entitled to get the decree executed by attaching commutation granted to the defendants with up to date defaulted instalments of money monthly and also the defaulted amount of Rs.500.00, if any, from the next commutation granted to him of the respective amount in future: (v) The defendants shall pay the decretal amount positively within three years failing which the plaintiff shall be entitled to attach the whole of the outstanding amount from any of the commutations granted to them and the defendants shall have no objection to such attachment. The aforesaid compromise decree was put into execution by the decree-holder appellants praying that commutation of Wasiqa or pen sion of the respondents be attached from the office of the Wasiqa Officer, Lucknow. An attachment order was sent and in response thereto the Wasiqa Officer as well as the respondents raised objections stating that, despite the consent decree, the wasiqa or pension could not be attached in view of the provisions contained in section 11 of the Pension Act. It was also urged that the agreement contained in the compromise decree regarding the mode of payment was void, being in violation of section 12 of the Pensions Act. Both the objections found favour with the execution court, with the result that the attachment of the amount of commutation was vacated. Feeling aggrieved against it, the decree-holder went in appeal before the District Judge. The appeal was heard by the Second Additional Civil Judge, Kanpur, and was dismissed. A Second Appeal was then filed before this Court which came up for disposal before a learned Single Judge. One of the arguments advanced on behalf of the decree-holder before the learned Single Judge was that the commuted amount is not a pension and, consequently, section 11 of the Pensions Act cannot apply to it. Reliance for this argument was placed before the learned Single Judge on a decision of this Court in the case of Mela Ram v. Senior Superintendent of Post Offices, Agra. A. I. R. 1970 Alld. 234 The learned Single Judge, however, felt that, in view of the pronounce ment of the Supreme Court in the case of The State of Gujarat v. Dr. Raghunath Balkrishna Chandrachud A. I. R. 1971 S. C. 846 the decision of this Court in the case of Mela Ram v. Senior Superintendent of Post Offices (supra) no more appeared to be a good law. In view, however, of the fact that the decision of this Court in the aforesaid case was a Division Bench decision, the learned Single Judge directed that this case may be referred to a larger Bench for disposal. It is thus that the case has come up before us.
(3.) WE have heard learned counsel on either side. On the arguments raised on either side, we find that the limited question involved for con sideration is whether sections 11 and 12 of the Pensions Act would apply to the commuted value of pension.;