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Judgment
Pius C. Kuriakose, J.—Under challenge in this writ petition filed by the wife is Ext. P6 order of attachment of the salary of the petitioner issued by the Family Court, Kozhikode. By Ext. P6, a sum of Rs. 1250/- per month from out of the salary of the petitioner, who is said to be drawing a total amount of roughly Rs. 15000/- being a full time sweeper of Kuthuparamba Municipality has been ordered to be attached. It is not disputed before us that Ext. P6 has been passed in E.P. No. 31/2009 which was a petition for execution of a decree for restitution of conjugal rights. One of the submissions of the learned counsel for the petitioner was that the decree for restitution of conjugal rights cannot be executed in the present manner against the wife. We cannot agree. Rule 32 of Order 21 of the CPC provides as follows;
Decree for specific performance, for restitution of conjugal rights or for an injunction - (1) Where the party against whom a decree for specify performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced(in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction) by his detention in the civil prison, or by the attachment of his property, or by both.
(2). Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3). Where any attachment under sub-rule (1) or sub-rule(2) has remained in force for (six months) if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.
(4). Where the judgment - debtor has obeyed the decree and paid all costs of executing the name which he is bound to pay, or where, at the end of (six months) from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
The argument of the learned counsel for the petitioner that decree for restitution of conjugal rights cannot be executed against the wife appears to be founded on Rule 33 of Order 21 which reads as follows;
Discretion of Court in executing decree for restitution of conjugal rights: (1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree (against a husband) for the restitution of conjugal rights or at any time afterwards, may order that the decree (shall be executed in the manner provided in this rule).
(2). Where the Court has made an order under sub-rule(1), it may order that, in the event of the decree not being obeyed-within such period as may be fixed in this behalf, the judgment debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
(3). The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid and again review the same, either wholly or in part as it may think just.
(4). Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.
As it is clear from a careful reading of the two provisions quoted above, Rule 33 is in addition to and not withstanding Rule 32. There is no doubt in our mind that the Family Court was perfectly justified in enforcing the decree for restitution of conjugal rights which has attained finally by attachment of the petitioner''s salary. Another submission, which was raised before us by the learned counsel for the petitioner, was that at any rate the sum presently ordered to be attached every month exceeds the attachable limits of the petitioner''s salary in terms of Section 60(1) of the Code of Civil Procedure. There is no material presently before us to determine the attachable extent of the petitioner''s salary. Even as we confirm Ext. P6, we give liberty to the petitioner to move the Family Court and convince that court as to the attachable extent of the petitioner''s salary by producing relevant documents.
The writ petition is dismissed subject to the above observation.