Kerala High Court
Sathyavathy vs Bhargavi (Died), Vijayan And Anr. on 21 March, 1991
Equivalent citations: AIR1991KER377, AIR 1991 KERALA 377, (1991) ILR(KER) 3 KER 119, (1991) CIVILCOURTC 585, (1991) 2 KER LJ 11
JUDGMENT Varghese Kalliath, J.
1. A question of some difficulty arises in this case. Petitioner before us is a decree-holder. The respondents are the legal representatives of the judgment-debtor. Petitioner secured a decree for Rs. 5,000/- with interest. This amount of Rs. 5,000/- was borrowed by the wife of the 2nd respondent. The wife of the 2nd respondent and the petitioner were teachers in St. John Bosco's Lower Primary School.
2. Petitioner instituted a suit, O.S. No. 1142/86 and obtained a decree. Petitioner filed an execution petition for realisation of an amount of Rs. 7,627.75 as E. P. No. 676/87. Petitioner wanted to attach the provident fund and gratuity amounts due to the deceased wife of the 2nd respondent. It is in evidence that the 1st respondent, i.e., the deceased wife of the 2nd respondent is entitled to get an amount of Rs. 11,000/- as provident fund and nearly an amount of Rs. 17,000/- as gratuity. This amount has to be obtained from the Assistant Educational Officer, Cherpu. The respondents contended that the amounts are not liable to be attached in view of the provisions contained in Section 60(1)(g) of the Code of Civil Procedure. The court below considered the question and found that the amount is not liable to be attached. The decree-holder, the petitioner is aggrieved and she has filed the Civil Revision Petition. The matter was referred by one of us for the decision of a Division Bench.
3. The contention raised by the petitioner before us is that even though the gratuity amount is an amount exempted from attachment under Section 60(1)(g) of the Code of Civil Procedure, that exemption is not available to the legal heirs of the person who earned the gratuity amount. In this case, admittedly the deceased wife of the 2nd respondent earned the gratuity amount and when that amount is payable by the Department, the person who earned the gratuity amount is not in a position to receive it, since she has left this world leaving only her estate to be represented by her legal representatives. So naturally the amount can be claimed only by the legal representatives as the asset of the deceased. The question is when once this amount devolves on the legal representatives as amount earned by the deceased whether the same exemption granted under Section 60(1)(g) of the Code of Civil Procedure survives. Section 60(1)(g) of the Code of Civil Procedure reads thus :--
"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 family pension fund notified in the Office Gazette by the Central Government or the State Government in this behalf, and political pension".
4. Counsel for the respondents contended that the gratuity amount remains as gratuity amount with the Department and that it retains the character of gratuity and so it is not liable to be attached in view of Section 60(1)(g) of the Code of Civil Procedure. At the first blush, it is a very attractive argument. But on a closer scrutiny, we feel that the argument is not sustainable. Though the amount has not been paid to the legal representatives on account of the prohibitory order passed in this proceedings, the reality is that the amount has to be paid by the Department to the respondents herein. The further reality is that the amount represents the earnings of the deceased wife of the 2nd respondent. The mere fact that the amount has not been paid may not be of much consequence, since it cannot be paid because of the prohibitory order passed by this Court. In all cases of attachment of salaries or such kinds of amounts in the hands of a third party, the attachment is effected by a prohibitory order.
5. The question that has to be considered is that when once the gratuity amount becomes an asset of the deceased person still it can be stated as gratuity amount and still that amount will retain the character of gratuity, so as to get exemption under Section 60(1)(g) of the Code of Civil Procedure. When it is said that the amount represents gratuity the statement is not complete in so far as it has to be said that it is gratuity of a particular employee. In this case, now the amount to be paid to the legal representatives of the deceased though once called gratuity payable to the worker after the death of the worker, it is an amount due from the Department which had lost the character of gratuity now payable to the respondents herein, viz., the legal representatives of the deceased employee.
6. The first part of Section 60 of the Code of Civil Procedure makes it clear that certain properties which are not exempted under Clauses (a) to (p) are liable to attachment in execution of the decree. In describing the properties liable to be attached and sold, it is made clear that it must be saleable property, movable or immovable belonging to the judgment-debtor or over whieh or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf. It is important to note that the properties which are liable to be attached should be the properties over which the judgment-debtor should have a saleable interest or over which or the profits of which he has a disposing power. It is also to be noted that the properties can be held in the name of the judgment-debtor or by another person in trust for him or on his behalf. Out of such properties, some properties are exempted from attachment. So the properties that are exempted from attachment should also satisfy the requirement that over such properties the judgment-debtor should have a saleable interest or it should be held in the name of the judgment-debtor or by another person in trust for him.
7. Admittedly the gratuity amount is now in the hands of the Department. It is difficult to say that at the time when the attachment was sought the amount of gratuity is held by the Department in trust for the judgment-debtor, because now the judgment-debtor is dead and no one can have property in trust for a dead person. True once the property was held by the Department perhaps in trust for the deceased wife of the 2nd respondent. But when once she died, it is difficult to hold that again the property is held by the Department in trust for the deceased wife. Then what is the character of the property held by the Department. We feel that it can only be a debt to be paid to the legal representatives of the deceased. Being the legal representatives of the deceased, they have got a claim to get the amount which was earned by the deceased wife of the 2nd respondent as gratuity. Since it is only a debt in the hands of the Department, there is nothing wrong in attaching the property for realisation of the amount due from the judgment-debtor. It cannot be disputed that the amount that can be now realised by the Department from the legal representatives is not an asset of the deceased. Assets of the deceased are liable to the debts of the deceased. If the assets came in the possession of the legal representatives or if the assets are held by some person for the legal representatives of the deceased, the properties are liable to be attached.
8. Counsel for the petitioner referred us to the decision reported in 1969 MPLJ Notes of Cases 63, Diwansingh v. Kusumbai. A somewhat identical position was considered in the above case. The court said that "the question, however, is whether the gratuity which is payable to the family after the death is attachable or not. The attachment was not in pursuance of the agreement that had been entered into. Therefore, the question of waiver did not arise. The question was whether such gratuity payable to the heir is exempt from attachment. After the death of the employee the amount becomes a debt payable to the legal representatives of the deceased. It becomes assets of the deceased in the hands of the Mills, and the Mills hold it not on behalf of the deceased hut on behalf of the persons entitled to the amount after his death". Certainly, this decision 1969 MPLJ Notes of Cases 63, supports the view we have expressed above.
9. Counsel for the respondents referred us to AIR 1932 Patna 311, Secretary of State v. Jamuna Das and AIR 1923 Oudh 21, Lachmi Narayan v. Umaid Rai. The decision reported in AIR 1932 Patna 311 relates to Provincial Insolvency Act. The Provident Fund Act itself provides for exemption and counsel for the petitioner submits that the attachment can be confined to gratuity alone and so we need not consider that question here in this case. AIR 1923 Oudh 21 is a case relating to gratuity. But that was a case where the court considered the right to gratuity only as a contingent right in so far as it is only a promise held out for good work to be done by the employees and as such, it is not liable to be attached. We do not think that the above two decisions will give any support to the contention that the gratuity in this case is not liable to be attached.
10. In the result, we set aside the order of the execution court. We direct the execution court to pass an order of attachment to the extent of the amount due to the decree-holder from the gratuity amount of the deceased judgment-debtor. Civil Revision Petition is allowed as above.