S. Balamurali vs K.V. Vikramanunni

Pius C. Kuriakose, J.—The grievance of the petitioner in these two writ petitions, a police constable, the judgment-debtor in two money decrees obtained by the respondent is that under Ext. P3 orders in these cases directing his arrest in execution the Court below has relied solely on Ext. B1 certificate disclosing a total amount of Rs. 8,515/- to hold that he has sufficient means to discharge the liability and that he has wilfully neglected to pay the decree debt. Of course, the learned Munsiff has indicated in the impugned orders that the salary as disclosed by Ext. B1 salary certificate may not be the sole source of income of the petitioner. But the fact remains that the only documentary evidence available before the Court regarding the petitioner''s income was the salary certificate. I find that the learned Munsiff has not made any enquiry as to what was the attachable portion of the salary of the petitioner. It is conceded that the petitioner''s salary is under attachment in other execution petitions also.

Explanation to Section 51 of the CPC will show that in the calculation of the means of the judgment-debtor for the purpose of Clause (b) of the proviso to Section 51, any property which is exempted from attachment in execution of the decree either by law or custom having the force of law shall be left out. Thus even in cases where execution of a money decree is sought by arrest and detention and salary is shown as the means of the judgment-debtor an enquiry is certainly necessary as to what is the attachable portion of the salary in terms of Section 60(1) of the CPC and in terms of other provisions of law. In the instant case it is conceded that the salary of the petitioner is under attachment on other execution petitions also. No enquiry has been conducted by the learned Munsiff as to what was the attachable portion of the salary of the petitioner. Since such an enquiry has not been conducted by the learned Munsiff, the impugned orders will have to be set aside. However, taking into account the totality of the circumstances which attend on these cases, I am inclined to do so only on conditions.

Accordingly, I set aside Ext. P3 in both the writ petitions and direct the execution Court to conduct a fresh enquiry into the means of the petitioner, giving due attention to the following questions;

i. What is the attachable portion of the salary of the petitioner.

ii. What could be the total amount of unattachable salary which has come to the hands of the petitioner after the decree was passed and till the execution petition was filed.

on condition that till such time as the above enquiry is completed the petitioner shall pay to the decree holder a sum of Rs. 1,500/- towards the credit of the two execution petitions on the first of every month commencing from the 1st of August, 2007 subject to the further condition that in the event of petitioner defaulting payment of any two instalments, he will forfeit the benefit of this judgment, in which event the impugned order will become operative. Once enquiry as directed above is completed, the learned Munsiff will hear both sides and pass fresh orders on the respondent''s request for issuance of arrest warrant.