J.L. Guruswamy and Neelamma vs K. Rekha

K.L. Manjunath, J.—The short question that arises for consideration before this Court is:

Whether the order passed under Order 21 Rule 48A of CPC by the Civil Judge (Jr. Dn.), Kollegal in execution petition No. 13/2007 dated 08.11.2011 is required to be set aside?

Admittedly, the petitioners have suffered judgment debtor in O.S. No. 80/2005 which is filed by the respondent for recovering an amount of Rs. 2,00,000/- borrowed by the petitioners, based on a promissory note with interest at 24% p.a., which suit came to be decreed. Thereafter, execution petition is filed by the respondent. Since the first petitioner has retired after attaining the age of superannuation, the decree holder sought for an attachment of the retirement benefits payable to the first petitioner. The said application came to be allowed. Aggrieved by the said order, the present petition is filed.

Learned Counsel for the petitioners relying on Section 60(g) of the CPC contends that the pensionary benefits cannot be attached and therefore, the order of the trial Court is illegal.

It is no doubt true that u/s 60 of CPC, the Court can attach certain benefits payable to the retired person and not the entire benefits as contended by the learned Counsel for the petitioners. In the circumstances, the petitioners were required to produce the documents from his employer to show the nature of the amount receivable by him on attaining the age of superannuation to bring the case u/s 60(g) of CPC. Such an attempt is not made and the trial Court has not applied its mind in this direction before passing the impugned order. In the result, the petition is allowed and the matter is remanded to the trial Court for fresh consideration and liberty is granted to the decree holder and the judgment debtor to produce the details of the amount receivable from his employer from his employer and thereafter the trial Court to consider the application in accordance with law.