2008 (11) TMI 675 - SC - Indian Laws

Summary

Issues Involved:
1. Execution of the decree and attachment of Fixed Deposit Receipts (FDRs).
2. Applicability of proviso (g) to Section 60(1) of the Code of Civil Procedure (CPC).
3. Jurisdiction of the High Court in altering the decree of the Trial Court.
4. Maintainability of the revision petition filed by the Bank.

Summary:

1. Execution of the Decree and Attachment of FDRs:
The Respondent No.1 Bank sanctioned a loan to Respondent No.2, with the appellant as guarantor. The loan was not repaid, leading to a suit decreed in favor of the Bank, directing recovery through the auction sale of a hypothecated Matador. The Bank initiated execution proceedings but could not trace the vehicle and sought attachment of the appellant's FDRs. The Executing Court allowed this but later released the FDRs, directing the auction of the Matador first. The High Court, however, directed the appellant to deposit Rs. 50,000 and furnish the Matador for auction, which led to the appellant filing a Review Petition, dismissed in limine.

2. Applicability of Proviso (g) to Section 60(1) of CPC:
The appellant argued that his FDRs, representing retiral benefits, could not be attached under proviso (g) to Section 60(1) of the CPC. The High Court's direction to adjust the decretal amount from the FDRs was challenged, citing that retiral benefits retain their character even after conversion into FDRs. The Supreme Court agreed, referencing multiple decisions affirming that gratuity and pensionary benefits are exempt from attachment.

3. Jurisdiction of the High Court in Altering the Decree:
The appellant contended that the High Court erred in altering the Trial Court's decree, which clearly directed the sale of the Matador first before touching other properties. The Supreme Court concurred, stating that the High Court committed a jurisdictional error by altering the decree and placing the onus on the appellant to produce the Matador.

4. Maintainability of the Revision Petition Filed by the Bank:
The appellant argued that the Bank's revision petition was not maintainable under Section 115 of the CPC, as it was against an interlocutory order. The Supreme Court, however, held that the order impugned in the revision petition sought to finally decide the manner of satisfying the decree, thus not attracting the bar under Section 115(1) of the CPC.

Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's order, and restored the Executing Court's order. The Bank was directed to take appropriate steps for recovering the Matador for its dues, and the appellant's FDRs were ordered to be released as per the Executing Court's directions.