Andhra HC (Pre-Telangana)
D. Vimala vs Canara Bank, Mettuguda, Secunderabad on 23 June, 1997
Equivalent citations: 1997(6)ALT62
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
JUDGMENT R. Bayapu Reddy, J.
1. This revision petition is filed against the orders dated 3-3-1993 passed in E.A. No. 125 of 1992 in E.P. No. 46/1991 in O.S. No. 1252/1988 on the file of the First Assistant Judge, City Civil Court, Secunderabad.
2. The respondent which is Canara Bank is the Decree Holder in O.S. No. 1252/1988. The decree was sought to be executed against the second Judgment Debtor by name D. Dayanand who was a railway employee. He died during the pendency of the execution proceedings. Subsequently, the gratuity amount due to him and which was payable to his wife and other legal representatives was attached by issuing prohibitory order against the garnishee who is the Deputy Collector of Stores, South Central Railway, Secunderabad. The Decree Holder filed E.A. No. 125 of 1992 requesting the Court to execute the decree against the wife of the deceased-Judgment Debtor No. 2 who died during the pendency of the execution proceedings and compel her to pay the E.P. amount out of the gratuity amount lying to the credit of her deceased husband in the hands of the Deputy Controller of Stores, South Central Railways, Secunderabad. She contested the petition mainly contending that the gratuity amount due to her deceased husband is not liable for attachment and that the decree holder is not liable for the relief prayed for in the petition. The lower Court passed the impugned orders holding that the gratuity amount which was due to the deceased Judgment Debtor No. 2 became payable to his wife and other legal representatives after his death and such amount is not exempt from attachment under the provisions of Section 60 C.P.C. Questioning the said orders the present revision petition is filed by the wife of the deceased Judgment-Debtor No. 2 who was shown as third respondent in E.A. No. 125/1992.
3. The only point that arise for consideration in this revision is whether the gratuity amount which was due to the deceased-Judgment Debtor No. 2 and which became payable to the revision petitioner herein and other legal representatives of the deceased is not liable for attachment ?
4. It is an admitted fact that the amount which was attached is the gratuity amount which was payable to the deceased Judgment Debtor No. 2 who was a railway employee. The said amount is lying with the Deputy Controller of Stores, South Central Railway, Secunderabad and after the death of the deceased-Judgment Debtor No. 2 the said amount became payable to his wife and other legal representatives. Section 60(1) (proviso) (g), C.P.C. provides that stipends and gratuities allowed to pensioners of the Government are not liable for attachment. In view of such provisions it is contended by the revision petitioner who is the wife of the Judgment-Debtor No. 2 that the gratuity amount lying with the Deputy Controller of Stores, South Central Railway, Secunderabad and which was payable to the Judgment-Debtor No. 2 during his life time and to her and other legal representatives after the death of the Judgment-Debtor No. 2 is not liable for attachment. The contention of the respondent-Decree Holder, however, is that even though such gratuity amount is not liable for attachment during the life time of the employee, such amount is liable for attachment after the death of the employee inasmuch as such amount will be in the nature of a debt due to the legal representatives of the deceased from the employer with whom the amount is lying and as it will lose its character as gratuity when it became payable to the legal representatives of the deceased employee and as such, attachment can be effected relating to such amount. Such contention was accepted by the lower Court in view of the decision of the Kerala High Court reported in Sathyavathy v. Bhargavi . It is observed in the said decision that the gratuity amount lying in the hands of the Department and due to be paid to the legal representatives of the deceased employee will be in the nature of a debt due from the employer to the legal representatives of the deceased employee; that the legal representatives of the deceased have got a claim to get the amount which was earned by the deceased as gratuity and that, therefore, such amount though not liable for attachment during the life time of the employee can be attached subsequent to his death when the amount became payable to his legal representatives. The learned Counsel for the revision petitioner, however, contends that the view held by the Kerala High Court in the above said decision on the basis of which the lower Court allowed the petition is erroneous and contra to the observations made by the Supreme Court in various decisions and as such decisions of the Supreme Court and the relevant provisions of Payment of Gratuity Act, 1972 were not brought to the notice of the learned Judges of the Kerala High Court; that the gratuity amount will not lose its character as such gratuity even after the death of the deceased employee and such amount is not liable for attachment either during the life time of the employee or even after his death in view of the provisions of Section 60(1) (proviso) (g), C.P.C. and also Sections 4 and 13 of Payment of Gratuity Act and that, therefore, the orders of the lower Court are not valid and legal and are liable to be set aside.
5. In the decision of the Supreme Court reported in Union of India v. J. C. Fund & Finance , it was observed by their Lordships that the Provident Fund amount, pensions and other compulsory deposits which are payable to an employee will retain their character until they reach the hands of such employee even if he has already retired from service. The earlier decisions of the Supreme Court reported in Union of India v. Radhah Kissen was also referred to by their Lordships in the above cited decision reported in Union of India v. J. C. Fund & Finance (supra) and it was observed that so long as the amount of provident fund dues, the nature of such dues is not altered till they are actually paid to the Government servant who is entitled to it on retirement or otherwise; that the Government is a trustee for such amounts due to the Government employee even after his retirement. The learned Counsel for the revision petitioner has also tried to rely upon another decision of the Supreme Court reported in Calcutta Dock Labour Board v. Sandhya Mitra 1985 I CLR 229 in which the question that arose for consideration is whether the gratuity amount due to an employee is liable for attachment. After referring to the relevant provisions of the Payment of Gratuity Act, 1972 and also the provisions of Section 60(1) (proviso) (g), C.P.C., it is observed by their Lordships that Section 13 of the Payment of Gratuity Act gives total immunity to gratuity from attachment. In the case concerned in that decision, the gratuity amount was payable to workman employee under the Calcutta Dock Labour Board and such amount was sought to be attached in the execution proceedings taken against the widow and son of the deceased employee after his death for rearranging the amount due under a decree passed against the employee. It is, therefore, clear from the observations made by their Lordships in the above cited decision of the Supreme Court that even in a case where the attachment of the gratuity amount is sought in the execution proceedings launched against the legal representatives of the deceased employee to whom the gratuity amount was payable, such gratuity amount is not liable for attachment. As already stated above, these decisions of the Supreme Court were evidently not brought to the notice of the Kerala High Court when the matter was argued in the above said matter relating to the decision reported in Satyavathy v. Bhargavi (supra).
6. Apart from this, it is to be seen that Section 4(1) of the Payment of Gratuity Act provides that gratuity shall be payable to an employee (a) on his superannuation or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease. It is clear from such provisions that gratuity shall be payable to an employee directly on his superannuation or on his retirement or resignation under Clauses (a) or (b) of Section 4(1) and to his legal representatives in case of his death as per Clause (c) of Section 4(1) of the Payment of Gratuity Act. The second proviso to Section 4(1) provides that in case of the death of the employee, gratuity payable to him shall be paid to his nominee or if no nomination has been made, to his heirs. Section 13 of the Payment of Gratuity Act provides that no gratuity payable in this Act .... shall be liable to attachment in execution of any decree or order of any Court. In the present case, the gratuity amount lying with the Deputy Controller of Stores, South Central Railway, Secunderabad is payable under the Payment of Gratuity Act to the deceased-second Judgment - Debtor during his life time and it became payable to his wife and other legal representatives after his death in view of the provisions of Section 4(1) of the Payment of Gratuity Act which are already referred to above. Inasmuch as the said gratuity amount is payable under the Payment of Gratuity Act to the legal representatives of the deceased-Judgment-Debtor No. 2 after his death, such amount will not lose its character as such gratuity amount is totally exempt from attachment in view of the protection granted under Section 13 of the Payment of Gratuity Act. Therefore, in view of such circumstances, the gratuity amount which became payable to the present revision petitioner and the other legal representatives of the deceased-Judgment-Debtor No. 2 after his death and which was sought to be attached in the present case is not liable for attachment in view of the provisions of Section 60(1) (proviso) (g), C.P.C. and also Section 4r/w. Section 13 of the Payment of Gratuity Act and the impugned orders of the lower Court cannot, therefore, be sustained.
7. The learned Counsel for the respondent-Decree Holder has, however tried to refer to an earlier decision of this Court reported in M. Ramakrishna Reddy v. P. Sitalatha, , which was rendered by me and in which it was held that gratuity amount which became payable to the legal representatives of the deceased employee is not exempt from attachment in view of the provisions of Section 60 C.P.C. It is to be seen in this connection that the above cited decisions of the Supreme Court and also the relevant provisions of the Payment of Gratuity Act were not brought to the notice of the Court at the time of hearing of the above said matter and the above said view was expressed by me mainly in view of the absence of a provision similar to Explanation 2-A (A.P. Amendment) in Section 60 C.P.C. relating to the attachment of gratuity amount even though such provision is specifically contained therein relating to Family Benefit Fund and Group Insurance amounts. But in view of the specific provisions of Payment of Gratuity Act and in view of the observations made by their Lordships in the above cited decisions of the Supreme Court, it is now held that gratuity amount payable to the legal representatives of the deceased employee are also not liable for attachment.
8. In the result, the revision petition is allowed and the impugned order of the lower Court are set aside. No costs.