Kandrakota Fouten Vs Jampana Veera Venkateswara Rao

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

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CIVIL REVISION PFTITIQn NO: 1685 OF

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Petition filed under Section 115 of CPC, praying that in the circumstances stated in the grounds filed herein the High Court may be pleased to set aside the Order dated 09-05-2023 in EP No.12 of 2023 in OS No.512 of 2021 on the file of the II Additional Principal Civil Judge, (Junior Division), Machilipatnam, Krishna District, AP.

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Between:

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Kandrakota Founten, S/o.Late Ramulu aged 53 years. Retired Employee, R/o.D.No.2-54-2, Canal Road, Behind LIC Office, Atapaka, Kaikalur, Krishna District

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...PETITIONER/1®^ respondent/judgment DEBTOR

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AND Jampana Veera Venkateswara Rao, S/o.Muthyalu aged about 56 years Retired Employee, R/o.D.No.4-1036-15/1, Godugupet, Machilipatnam, Krishna District. ...RESPONDENT/PETITIONER/DECREE HOLDER The Branch Manager, State Bank of India, Kaikalur Branch, Sailok Complex, Korukollu Road, Kaikalur, Krishna District (Garnishee)

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...RESPONDENT/PETITIONER/DECREE HOLDER

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...RESPONDENT/2^°

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respondent (GARNISHEE)

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend operation of the Order in EP No. 12 of 2023 in OS No.512 of 2021 on the file of the Principal Civil Judge, (Junior Division), Machilipatnam, Krishna District till disposal of this^CRP.

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Counsel for the Petitioner : SRI RAJA SEKHAR SYKAM

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Counsel for the Respondent No.1: SRI K A NARASIMHAM

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Counsel for the Respondent No.2 : SRI DHARA SATYANARAYANA

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The Court made the following ORDER :

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HON’BLE SRI JUSTICE NYAPATHY VIJAY

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CIVIL REVISION PETITION No. 1685 of 2023

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ORDER:-

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This Civil Revision Petition is filed questioning the^order dated 09.05.2023 in E.P.No.12 of 2023 in O.S.No.512^of2021 passed by the Junior Civil Judge, Machilipatnam, Krishna District.

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Suit 2. The Petitioner is the Judgment Debtor. O.S.No.512 of 2021 was filed for recovery of money by the Respondents and the same was decreed on 21.06.2022^for an amount of Rs.4,98,600/-. Subsequently, E.P.No.12 of 2023 was filed for attachment of an amount of Rs.6,50,000/lying in the Bank Account of Petitioner/Judgment debtorⁱⁿ Account No.i 131022154 of State Bank of India, Kaikalur Branch by way of prohibitory order and realize the^amount through Respondent No.2. 3. The Petitioner filed his counter contending that the amount of Rs.6,50,000/- is not available in his account^ason 07.02.2023 and the amount of Rs.3,01,474/- was credited^to his bank account towards commutation of pension. It^was \ farther contended that the commutation of pension is not

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attachable as per Section 60 CPC and a judgment of^Hon’ble Supreme Court in RadheyShyam Gupta v. Punjab National Bank and another^ was relied upon in support of his contention. It was also contended that the Petitioner^isunable to use the Bank account for his requirements.

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The executing Court allowed the E.P. attaching the amount due in the account by relying on a judgment^ofthis Court in Balavenkatagari Rama Muni Reddy v. K.Fakruddin^, wherein it was held that the retirement or gratuity amount credited into the account of the judgment debtor loses its character and are liable to be attached. Hence, the present civil revision petition is filed.

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Heard Sri Sykam Rajasekhar, learned counsel for the Petitioner and Sri K.A.Narasimham, learned counsel^forthe Respondents.

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The counsel for the Petitioner contended that the commutation of pension cannot be attached under section⁶⁰ CPC and the same is exempted. Reliance was made on judgment of the Hon’ble Supreme Court in Radhey Shyam Gupta’s case (1 supra).

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(2009) 1 see 376 ^2016(2) ALD 148

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The counsel for the Respondents contended that bar^of attachment is applicable only as long as the amounts^are in the custody of the employer and the moment they are transferred into the account of the Judgment debtor,^thesaid amounts lose their character i.e. gratuity, accommodation pension, etc. and they are liable to be attached. Learned counsel for the Respondents relied on Balavenkatagari Rama Muni Reddy’s case (2 supra) in support of his contention.

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Having heard the respective counsel, it would be appropriate to refer to Section 60 (i) (g) of CPC:

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‘60(1) (g) stipends and gratuities allowed to pensioners of the government or of a local authority or of any^other employer or payable out of any service pension fund notified ■ in the Official Gazette by the Central Government or the State government in this behalf,^and political pension;’

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As per the above provision, stipends, gratuities allowed to pensioners of the Government: any amount payable^outof any service notified by the Central Government are exempted from attachment.

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The Hon’ble Supreme Court in Radhey Shyam Gupta’s case (1 supra) held that the amounts received by the ^ployee even after retirement do not lose their character

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5BWF»!

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and continue to be covered by Proviso (g) to Section 60(1)

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CPC. Para 35 thereof is extracted below;

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‘35. We also agree with Ms Shobha that even after the^retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g). to Section 60(1) of the Code. Except for the decisionⁱⁿ Jyoti Chit Fund and Finance case, where a contrary view was taken, the consistent view taken thereafter supports the contention that merely because of the^fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer^be identified as such retiral benefits paid to the appellant.'

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Further, commutation of pension was excluded from being attached as held by this Court in T.Sakuntala v. B.Satya Murthy and another^. The relevant portion of^the judgment is extracted here under; ' In view of the above law declared by the Supreme Court, it is clear that even the commuted pension in^the hands of the pensioner also has the same protection as the perision. In this view of the matter, the commuted pension also cannot be attached in terms of Section 60 CPC, since it has to be read with Section 11 of the Pensions Act, 1871. It is not in dispute^that Pensions Act, 1871 is still in force. Flaving regard^to these circumstances, the conclusions of the Court

^ 1999 (2) ALD 2

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below that the commuted pension at the hands of the judgment-debtors is not liable for attachment do not call for Interference. ’

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The judgment of this Court in Balavenkatagari Rama Muni Reddy’s case (2 supra) had considered the judgment of Hon’ble Supreme Court in Union of India v. Jyothi^Chit Fund and Finance and others * and Radhey Shyam Gupta’s case (1 supra) and held that the protection is no longer available the moment those amounts are credited^to the account of retiree as they lose the character of gratuity/pension etc., sounds odd.

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The prohibition relating to attachment of pensions is traceable to the Pension Act, 1871. Section 11 thereof^reads as under:

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‘11. Exemption of pension from attachment

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No pepsion granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court [* * *] at the instance of a creditor, for, any demand against

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4Aii^1976 SC 1163

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the pensioner, or in satisfaction of a decree or order^of any such Court. ’

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The above provision was not brought to the notice of this Court in Balavenkatagari Rama Muni Reddy’s case (2 supra). The Section 11 of the Pension Act is explicit^andon deposit of pension, it retains the character. The purpose^of protection from exemption under Section 11 of the Pension Act as incorporated in Section 60 CPC should not be lost sight of in the process of determining the character. The purpose is to ensure that a retiree in the last quarter of^{hislifelivesa} life with dignity by not being dependant on monetary aspects. In the course of transformation of society as socialistic thinking acquired respectability, State obligation to provide security in old age was recognized and as a first step pension was treated not only as a reward for past service but^witha view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee vas physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits.

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Section 10 of the Pensions Act, 1871 refers to commutation of pensions. The Sections 10 and 11 of^the Pensions Act, 1871 was not considered by this Court in Balavenkatagari Rama Muni Reddy’s case (2 supra).

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Even otherwise, once the Hon’ble Supreme Court held that pension and gratuity do not lose their character, even after they are transferred in favour of the pensioner, it would not be appropriate for this Court to interpret the judgment. It is not as though the Hon’ble Supreme Court was not^awareof the earlier judgment i.e. Jyothi Chit Fund and Finance (4 supra) and after specifically referring to said judgment,^the Hon’ble Supreme Court consciously differed from the^said judgment. Therefore, it would not be appropriate for^thisCourt to hold otherwise. Similar is the case with regard to gratuity as there is exemption from attachment under Section^13of Payment of Gratuity Act, 1972.

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