Andhra Pradesh High Court - Amravati
P Sundararao vs Shriram City Union Finance Ltd on 19 October, 2020
Author: B Krishna Mohan
Bench: B Krishna Mohan
*THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
*THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN
+CIVIL REVISION PETITION NO.545 OF 2019
%19.10.2020
Between:
# P.Sundararao,
S/o Chinnarao, aged 45 years,
Working as Attender, Thoti at Community Health Centre,
Pathapatnam Mandal, Srikakulam District.
....Petitioner-4th J.Dr.
And
$ Shriram City Union Finance Ltd.,
Rep.by its GPA holder, K.Vasu, aged 38 years,
Regional Manager, Srikakulam Town & District & 3 others.
....Respondents.
! COUNSEL FOR THE PETITIONER: Sri G.V.S.Kishore Kumar.
^COUNSEL FOR THE RESPONDENTS: Sri Maheswara Rao Kunchem
< Gist:
> Head Note
? Cases referred
1. AIR 2013 SC 1732
2. AIR 1961 (AP) 335 (FB)
3. (2008) 1 ALD 392
4. AIR 2010 SC 3817
5. (1991) 1 SCC 725
6. AIR 2018 SC 5034
7. AIR 2013 SCC 3830
2
AVSS,J & BKM,J
C.R..P.No.545 of 2019
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
3
AVSS,J & BKM,J
C.R..P.No.545 of 2019
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE B.KRISHNA MOHAN
CIVIL REVISION PETITION NO.545 OF 2019
ORDER:( per the Hon'ble Sri Justice A.V.Sesha Sai) Judgment-Debtor No.4 in E.P.No.44 of 2018 in A.O.P.No.507 of 2012 on the file of the Court of the learned Judge, Family Court-cum-III Additional District & Sessions Court, Srikakulam is the petitioner in the present revision filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'CPC').
2. In brief, the circumstances leading to filing of the instant Civil Revision Petition are as infra:
2.1 In view of the default committed by the second respondent herein, in payment of the loan amount, first respondent herein pressed into service the provisions of Arbitration and Conciliation Act, 1996 (for brevity, 'the Act') and filed a claim statement under Section 23 of the said Act. Initially, proceedings were initiated, impleading three respondents. Subsequently, vide order, dated 06.09.2013, petitioner herein, who is the son of the third respondent, was impleaded as fourth respondent. Eventually, the learned sole Arbitrator passed an Award, dated 31.12.2014, in A.O.P.No.507 of 2012 and the operative portion of the said Award, at paragraph No.10, reads as follows:4
AVSS,J & BKM,J C.R..P.No.545 of 2019 "10 (a) In the result award is passed directing the respondents to pay Rs.3,42,830/-
with subsequent interest at 6% p.a. on 2,00,000/- from 04.08.2012 i.e. the date of presentation of claim petition till the date of realization and to pay costs of Rs.10,408/- (rupees ten thousand eight hundred and eight only).
b. Respondents are jointly and severally liable to pay the amounts.
c. The award shall be enforced under the code of CPC 1908 in the same manner as if it is the decree of civil Court as per Section 36 of Arbitration and Conciliation Act, 1996". 2.2. Seeking enforcement of the said Award, first respondent-Decree-Holder filed E.P.No.44 of 2018 in A.O.P.No.507 of 2012 for recovery of a sum of Rs.3,92,609/- by way of attachment of salary of the Judgment-Debtors.2 and 4 (petitioner herein) on the file of the Court of the Judge, Family Court- cum-III Additional District and Sessions Court, Srikakulam. The learned Judge, by way of an order, dated 18.12.2018, allowed E.P.No.44 of 2018 and operative portion of the said order, at paragraph No.9, reads as follows:
"In the result, Execution Petition is allowed. The garnishee of Judgment-Debtor No.2 i.e. Mandal Educational Officer, Srikakulam and Garnishee of Judgment-Debtor No.4 i.e. Medical Officer, Pathapatnam Mandal, Srikakulam are hereby directed to attach the salary of Judgment-Debtors 2 and 4 and deduct the same from the month of January, 2019 as per Order XXI Rule 48 read with Section 60 CPC and send the same to the Decree-Holder company's account i.e. Decree- Holder-company is hereby directed to furnish the details of its bank account to the 5 AVSS,J & BKM,J C.R..P.No.545 of 2019 garnishees of Judgment-Debtors 2 and 4 respectively. The Decree-Holder company is directed to communicate the same to garnishees of Judgment-Debtors 2 and 4".
This revision challenges the validity and the legal sustainability of the said order.
3. Heard Sri G.V.S.Kishore Kumar, learned counsel for the petitioner, and Sri Kunchem Maheswara Rao, learned counsel for the first respondent-Decree-Holder, apart from perusing the entire material available on record.
4. It is contended by the learned counsel for the petitioner that the impugned order, to the extent of the Judgment- Debtor No.4-petitioner herein, is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Sections 51 and 52 of CPC. It is further stated that, since the salary which the Judgment-Debtor No.4-petitioner herein is getting from the compassionate appointment is not the property of Judgment-Debtor No.3-mother of the petitioner, the salary of the petitioner cannot be attached and deducted. The learned counsel relies on the following judgments:
1. 1991 (1) SCC 725.
2. Judgment of Chattisgarh High Court, dated 10.10.2017, in F.A.M.No.177 of 2015.
3. 2008 (1) ALD 392.
4. AIR 2018 SC 5034.
5. On the contrary, it is contended by the learned counsel for the first respondent that there is no error nor there exists 6 AVSS,J & BKM,J C.R..P.No.545 of 2019 any infirmity in the impugned order and, in the absence of the same, the impugned order does not warrant any interference of this Court under Section 115 of CPC; that the Award attained finality and so long as it continues to be in force, the Judgment-Debtor No.4-petitioner herein cannot escape from liability flowing from the said Award. It is further contended that, having regard to the provisions of Order XXII Rule 4 of CPC and having regard to the conduct of the petitioner in not participating in the earlier proceedings, the present revision is liable to be dismissed. In support of his submissions and contentions, learned counsel for the Decree-
Holder places reliance on the judgment of the Hon'ble Apex Court in Sushil K.Chakravarty (D) Thr. v. M/s Tej Properties Private Limited1 and Mir Mohiuddin Alikhan v. Sayeedunnissa Begum and others2.
6. It is further submitted by the learned counsel for the first respondent-Decree-Holder that the judgment sought to be relied upon by the learned counsel for the petitioner has absolutely no relevance to the facts and circumstances of the present case and in the judgment reported in Bandaru Srinivassa Rao v. Sreyobhilashi Chit Funds, Wyra & Others3, this Court considered the effect of Section 50 of CPC only and did not deal with the provisions of Section 52 1 AIR 2013 SC 1732 2 AIR 1961 (AP) 335 (FB) 3 (2008) 1 ALD 392 7 AVSS,J & BKM,J C.R..P.No.545 of 2019 of CPC, as such, the law laid down in the said judgment has no relevance to the present case.
7. It is further submitted that the property mentioned in Section 52 of CPC needs to be construed as immovable property and cannot be extended to movable properties.
8. In the above background, now the issues that emerge for consideration of this Court are:
1. Whether the petitioner is entitled to maintain the present Civil Revision Petition without assailing the Award passed by the Arbitral Tribunal and without participating in the Execution Proceedings ?
2. Whether the salary which the petitioner (appointed under compassionate appointment scheme) is receiving from his employer is the property or the estate of the deceased and whether the said salary is attachable in execution ?
9. Issue No.1: It is absolutely not in controversy that the petitioner herein has neither participated in the Arbitration proceedings nor he is assailing the Award. It is also a reality that he never participated in the Execution Proceedings also, but it is a settled proposition of law that a pure question of law can be raised even in collateral proceedings and, in the present revision, petitioner herein is obviously canvassing a pure question of law, as such, failure on his part to question the Award passed by the Arbitral Tribunal and failure to participate in the execution proceedings, by any stretch of imagination, cannot be a ground to non-suit the petitioner and, on the said ground, in the considered opinion of this 8 AVSS,J & BKM,J C.R..P.No.545 of 2019 Court, the present Civil Revision Petition cannot be dismissed.
10. If the law does not permit the Decree-Holder to recover the amount, all these aspects pale into insignificance.
11. In this context, it would be appropriate to refer to the judgment of the Honourable Apex Court in the case of Greater Mohali Area Development Authority and another v. Manju Jain & others4, wherein the Hon'ble Apex Court held that pure question of law can be raised at any time of the proceedings, but a question of fact which requires investigation and enquiry, and for which no factual foundation has been laid by a party before the Court or by the Tribunal below, cannot be allowed to be agitated in the Writ Petition.
12. In the instant case, the question of law raised by the petitioner, in the definite opinion of this Court, is a pure question of law which does not require any investigation and enquiry. Therefore, the contention raised contra by the learned counsel for the first respondent-Decree-Holder is liable to be rejected and is, accordingly, rejected and the issue is answered in favour of the petitioner and in favour of the maintainability of the revision.
4 AIR 2010 SC 3817 9 AVSS,J & BKM,J C.R..P.No.545 of 2019
13. Issue No.2: In order to answer this issue, it would be appropriate and apposite to refer to certain provisions of the Code of Civil Procedure. Sections 51 and 52 of CPC read as under:
51. Powers of Court to enforce execution.
Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property;
(c) by arrest and detention in prison 1[for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require:
52. Enforcement of decree against legal representative.
(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.
14. It is very much vivid and manifest from a reading of Section 52 of CPC that in an application for recovery of 10 AVSS,J & BKM,J C.R..P.No.545 of 2019 money, as in the instant case, decree is enforceable against legal representatives of the defendants from out of the property which they have succeeded from their predecessors. In the instant case, it is the contention of the learned counsel for the petitioner that the salary which the petitioner is getting from the Government out of the compassionate appointment is neither the property nor the estate of the deceased. In support of the said contention, as referred to supra, number of judgments have been cited by the learned counsel for the petitioner.
15. In Smt.Violet Issaac and others v. Union of India and others5, the Hon'ble Apex Court, while dealing with the monetary benefits payable by the Railway Administration on the death of an employee, at paragraph Nos.4 and 5, held as follows:
"4. The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension. We would therefore deal with the question of family pension only. Family Pension Rules 1964 provide for the sanction of family pension to the survivors of a Railway Employee. Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service. Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family 5 (1991) 1 SCC 725 11 AVSS,J & BKM,J C.R..P.No.545 of 2019 pension till she attains the age of 25 years or gets married, which ever is earlier. The Rules do not provide for payment of family pension, to brother or any other family member or relation of the deceased Railway employee. The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no- other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the 'wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The Family Pension Scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition.
5. In Jodh Singh v. Union of India & Another[ 1980 (4) SCC 306 this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The Court observed:
"Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.12
AVSS,J & BKM,J C.R..P.No.545 of 2019 The Court further held that what was not payable during the life time of the deceased over which he had no power of disposition could not form part of his estate. Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition".
16. In Bharatlal Sharma and another v. Smt.Mithlesh Sharma (Judgment, dated 10.10.2017, in FAM.No.177 of 2015), at paragraph No.10, the High Court of Chattisgarh held as under:
"10. Applying the law laid down by the Supreme Court in the matters of Smt. Violet Issaac, Jodh Singh and Nitu Vs. Sheela Rani (Supra) we find that compassionate appointment is never available to a Government servant during the tenure of his service. It is a status or benefit which a definite class or dependents of the deceased are entitled for under the executive policy of the Government, therefore, neither the deceased can dispose of this benefit through a will nor the said facility of compassionate appointment can be treated as estate of the deceased. Therefore, the respondent being a recipient of the compassionate appointment, which is not part of the estate of the deceased, is not obliged in law to maintain the appellants from the salary which she is receiving through compassionate appointment. The respondent may be morally liable and duty bound to maintain her parents-in-law but the Court cannot compel her to grant such maintenance under Section 22 (1) of the Act. It was not proper on the part of the respondent to have neglected her parents-in-law who have lost their only son. However, we are helpless in this Appeal to come to the appellants rescue. Their remedy may lie elsewhere either by way of invoking writ jurisdiction or otherwise, for 13 AVSS,J & BKM,J C.R..P.No.545 of 2019 which the appellants would be at liberty to prosecute such remedy as is available to them".
17. It is also significant to note in this context that the Hon'ble Apex Court time and again held that compassionate appointment is not a right which accrues on the death of the employee and, as such, the same cannot be construed as property or the estate of the deceased and this Court is in agreement with the above referred judgment.
18. In Bandaru Srinivassa Rao's case (third cited supra), a learned single Judge of the composite High Court, while dealing with the provisions of Section 50 of CPC and the liability of the legal representatives, prior to decree, at paragraph Nos.4 to 6, held as under:
"4. Section 50 (2) of C.P.C. reads as follows :
"50. Legal representative.- (1) ............. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of, and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit."
5. Clause (2) of Section 50 of C.P.C. makes it very clear that the legal representative is liable only to the extent of the property of the deceased, which has come to his hands and there is a duty cast on the Court to examine whether the fourth judgment debtor inherited any property or whether the property of the deceased is in the hands of the legal 14 AVSS,J & BKM,J C.R..P.No.545 of 2019 representative and then only pass appropriate orders for attachment.
6. In the present case, the trial Court extracting the contentions raised by both parties allowed the application by finding that except denying that he did not succeed to the estate of his father, the fourth respondent has not put forth any evidence. Thus, in view of Section 50 (2) of C.P.C., the fourth respondent is liable to pay the amount to the extent of the property of the deceased-third judgment debtor. When the attachment of the salary of the legal representative is sought for, the initial burden is on the decree holder to prove that he inherited to any property of his father. In the absence of that, the attachment cannot be ordered and therefore, I am inclined to set aside".
19. In Sebastiani Lakra & Others v. National Insurance Company Limited & another (AIR 2018 SC 5034), the Hon'ble Apex Court, while dealing with the provisions of Insurance law and the Motor Vehicles Act, 1988 and while referring to the earlier judgment of the Hon'ble Apex Court, in Vimal Kanwar and others v. Kishore Dan and others6, categorically found that the salary received on the compassionate appointment cannot be deducted and paragraph Nos. 9 and 12 of the said judgment read as follows:
"9.Thereafter, similar matter came up for considerati on in Vimal Kanwar v. Kishore Dan6. This Court, following Helen C. Rebello case (supra) held that the amounts received by the heirs by way of provident fund, pension and insurance cannot be termed as 'pecuniary advantage' liable for deduction. This Court also held that the salary 6 AIR 2013 SCC 3830 15 AVSS,J & BKM,J C.R..P.No.545 of 2019 received on compassionate appointment cannot be deducted.
12.The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependants or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/ dependents are entitled to 'just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his lifetime cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death".
20. Coming to the judgments cited by the learned counsel for the first respondent-Decree-Holder- the judgment of the Hon'ble Apex Court in Sushil K.Chakravarty's case (first cited supra) which dealt with the provisions of Order XXII Rule 4 CPC is of no assistance to the first respondent herein having regard to facts and circumstances of the case on hand.
21. Coming to the judgment of the Full Bench of the composite High Court in Mir Mohiuddin Alikhan's case (second cited supra), it is to be noted that the Full Bench of the composite High Court, at paragraph No.8, while dealing with the provisions of Rule 52 of CPC, held as under: 16
AVSS,J & BKM,J C.R..P.No.545 of 2019 "8. A reference to Section 52 of the Indian Civil Procedure Code is necessary. Section 52 reads as under:
"52. (1) "Where a decree is passed against a party as the legal representative of a deceased per son, and the decree is for the payment of money out of the property of the deceased it may be executed by the attachment and sale of any such property.
1961 Andh. Pra. D.F./22.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally."
That section envisages the enforcement of the decree as against the property of the deceased and Section 52 says that the decree might be executed by the attachment and sale of any such property. The words "any such property" used therein would indicate that so long as the decree-holder can point out that a certain property is that of the deceased, the decree can be enforced against it. What Section 52 conveys is that a decree which is against a legal representative of a deceased person could be executed against any and every property of the deceased so long as the decree-holder is in a position to satisfy the court that the property he is proceeding against is the property of the deceased person".
22. In the considered opinion of this Court, the law laid down in the said judgment also supports the case of the petitioner herein.
23. In view of the findings recorded supra, in the preceding paragraphs, and the law laid down in the above referred judgments, the salary of the petitioner herein, which he is 17 AVSS,J & BKM,J C.R..P.No.545 of 2019 receiving from the Government, can neither be treated as property nor the estate of the deceased, as stipulated in Section 52 of CPC, and, when it does not have such a character, in the considered opinion of this Court, the same is neither attachable nor deductable under Order XXI Rule 48 CPC. Though the learned counsel for the petitioner sought to rely on Order XXII Rule 4 of CPC, having regard to the facts and circumstances of the case, the same would not render any assistance to the respondents herein.
24. Section 52 of CPC does not make any distinction between movable and immovable properties, as such, the contention of the learned counsel that the said provision of law cannot be applied for the movable properties is neither tenable nor sustainable in the eye of law.
25. For the aforesaid reasons, the Civil Revision Petition is allowed setting aside the order, dated 18.12.2018, passed by the Judge, Family Court-cum-III Additional District & Sessions Court, Srikakulam in E.P.No.44 of 2018 in A.O.P.No.507 of 2012 to the extent of the fourth Judgment- Debtor No.4-petitioner herein. However, it is made clear that this order does not preclude the first respondent-Decree- Holder from proceeding with the property, if any of the deceased, which continues to be in possession of the fourth Judgment-Debtor No.4-petitioner herein. There shall be no order as to costs.
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AVSS,J & BKM,J C.R..P.No.545 of 2019
26. As a sequel thereto, miscellaneous petitions pending, if any, in the Civil Revision Petition shall stand closed.
___________________ A.V.SESHA SAI, J _______________________ B.KRISHNA MOHAN, J 19th October, 2020.
Note:
LR Copy to be marked.
B/o Tsy