Saturday, 8 October 2016

Whether pension can be attached in execution of decree?

 It is well settled that attachment of pension amount cannot be
made for realization of any outstanding.  In this aspect, the above decision
of the Apex Court relied on by the learned Counsel appearing for the
petitioner can be usefully quoted, wherein, in paragraph No.33, the Supreme
Court has observed that the pension and gratuity amount should not attached
under the provision of the Code of Civil Procedure. Paragraph No.33 reads as
follows:-
        ?33. However, we are also of the view that having regard to proviso (g)
to Section 60(1) of the Code, the High Court committed a jurisdictional error
in directing that a portion of the decretal amount be satisfied from the
fixed deposit receipts of the appellant held by the Bank. The High Court also
erred in placing the onus on the appellant to produce the Matador in question
for being auctioned for recovery of the decretal dues. In other words, the
High Court erred in altering the decree of the trial Court in it revisional
jurisdiction, particularly, when the pension and gratuity of the appellant,
which had been converted into fixed deposits, could not be attached under the
provisions of the Code of Civil Procedure. The decision in Jyothi Chit Fund
case has been considerably watered down by later decision which have been 
indicated in para 22 hereinbefore and it has been held that gratuity payable
would not be liable to attachment for satisfaction of a court decree in view
of proviso (g) to Section 60(1) of the Code.?

                7.      Therefore, if there is any outstanding due payable by the
petitioner, it is for the respondents bank to work out their remedy to
recover the said amount, in the manner known to and permissible by law,
before the appropriate forum.  Without doing so, resorting to attach the
pension amount by way of passing the impugned order is impermissible. 
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED : 27.11.2015  

CORAM   
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU               

W.P.(MD)No.17838 of 2015   
and 
M.P.(MD).No.1 of 2015 

A.Muthuiruvakkal    Vs.The State Bank of India,
  

                Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus to call for the records of
the first respondent impugned order dated 13.08.2015 and quash the same 
insofar as put on hold in SB A/c.No.11319810470 for an amount of Rs.25 Lakhs 
on account of recovery of the dues to the bank and consequently direct the
second respondent to credit the amount of Rs.14,681/- if any in future with
interest which was already deducted in the SB Account of the petitioner.
            
                The petitioner is aggrieved against the order of the first
respondent dated 13.08.2015 whereby, her Saving Bank Account No.11319810470    
dealing only in respect of her pension amount was put on hold for the purpose
of recovery of an outstanding of loan amount.

                2.      Heard the learned Counsel appearing for the petitioner and
the learned Standing Counsel appearing for the respondents and perused the
materials placed before this Court.

                3.      It is the contention of the learned Counsel appearing for
the petitioner that the present impugned order passed is in effect attaching
the pension amount of the petitioner lying in  S.B.Account No.11319810470 by
putting such an account on hold, which is impermissible in law, as pension
amount cannot be attached or recovered for the purpose of recovery of any
outstanding amount payable by the petitioner.  In support of such contention,
the learned Counsel relied on a decision of the Supreme Court reported in
(2009) 1 SCC 376, Radhey Shyam Gupta Vs. Punjab National Bank and another.    

                4.      The learned Counsel for the respondents though admitted
that the said Saving Bank Account which was put on hold in the impugned order
is in respect of the amount only dealing with the pension of the petitioner,
has however submitted that as there is a outstanding dues to the tune of
Rs.2,18,09,971/- as on 03.08.2015, the respondents bank has left with no
other option except to pass the present impugned order.

                5. The question now that arises for consideration before this
Court is as to whether the respondent bank is justified in attaching the
pension amount of the petitioner by passing the present impugned order for
realization of the outstanding dues, as claimed by the respondent bank.
                6. It is well settled that attachment of pension amount cannot be
made for realization of any outstanding.  In this aspect, the above decision
of the Apex Court relied on by the learned Counsel appearing for the
petitioner can be usefully quoted, wherein, in paragraph No.33, the Supreme
Court has observed that the pension and gratuity amount should not attached
under the provision of the Code of Civil Procedure. Paragraph No.33 reads as
follows:-
        ?33. However, we are also of the view that having regard to proviso (g)
to Section 60(1) of the Code, the High Court committed a jurisdictional error
in directing that a portion of the decretal amount be satisfied from the
fixed deposit receipts of the appellant held by the Bank. The High Court also
erred in placing the onus on the appellant to produce the Matador in question
for being auctioned for recovery of the decretal dues. In other words, the
High Court erred in altering the decree of the trial Court in it revisional
jurisdiction, particularly, when the pension and gratuity of the appellant,
which had been converted into fixed deposits, could not be attached under the
provisions of the Code of Civil Procedure. The decision in Jyothi Chit Fund
case has been considerably watered down by later decision which have been 
indicated in para 22 hereinbefore and it has been held that gratuity payable
would not be liable to attachment for satisfaction of a court decree in view
of proviso (g) to Section 60(1) of the Code.?

                7.      Therefore, if there is any outstanding due payable by the
petitioner, it is for the respondents bank to work out their remedy to
recover the said amount, in the manner known to and permissible by law,
before the appropriate forum.  Without doing so, resorting to attach the
pension amount by way of passing the impugned order is impermissible. 

                8. Accordingly, this writ petition is allowed and the impugned
order is set aside. Consequently, the respondent bank is directed to permit
the petitioner to operate the said Saving Bank Account referred to above,
without any hindrance.   No costs. Consequently, connected miscellaneous 
petition is closed.

T
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