9911796707
TMI Blog2008 (11) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... till realization. While decreeing the suit, the trial Court directed as follows :- The plaintiff shall be entitled to recover this amount by auction sale of the hypothecated Matador Mahindra FC RRD/1851. The plaintiff shall also be entitled for cost of litigation. If any amount remains to be paid even after auction sale of the Matador, then the same shall be recovered from other properties of the defendants. The suit of the plaintiff is hereby decreed against the defendants in the aforesaid terms. 4. The aforesaid directions have created some confusion in the execution of the decree. 5. For the purpose of executing the decree the respondent No.1 Bank initiated execution proceedings and though warrants for attachment of the Matador were issued, the same were not executed by the Bank on the ground that the vehicle was not traceable and instead the Bank sought attachment of the appellant's Fixed Deposits with the said Bank made with the amounts received by him by way of pension and gratuity. The Executing Court allowed the Bank's application and ordered attachment of the appellant's Fixed Deposit Receipts, hereinafter referred to as FDRs . The appellant move ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l remain due after the adjustment of 50,000/- and the sale price that would be fetched from the sale of the matador. 8. In the light of the above, the order of the Executing Court was set aside and in terms of the decree as also the order passed by the High Court on 15th October, 2003, the amount of ₹ 50,000/- out of the appellant's Fixed Deposit Receipts was directed to be adjusted in the first instance. It was also directed that on the Matador being furnished along with solvent security before the learned Executing Court by the appellant herein, the remaining amount under the Fixed Deposit Receipt would be released to him. It was further directed that on the Matador being produced, the decree holder Bank would be entitled to realize the decretal amount by sale of the Matador and while realizing the balance of the decretal amount, if any, through the solvent security to be furnished by the appellant herein, the Fixed Deposit Receipts, which were accepted to be the appellant's retirement benefits, were to be returned to him. 9. On 5th April, 2005, the appellant filed a Review Petition before the High Court in respect of the order dated 28th February, 2005, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount was that such an amount has to be adjusted firstly, directly in accordance with the direction contained in the decree, and in the absence of such direction, adjustments are to be made firstly in payment of interest and costs and thereafter in payment of the principal amount, subject to the exception that the parties could agree to the adjustment of the payment in any other manner despite the decree. 13. The second ground urged by Ms. Shobha was that although initially the appellant's Fixed Deposit Receipts were attached by the Executing Court, ultimately, on objections being filed on behalf of the appellant, the Executing Court by its order dated 1.11.2002 came to the finding that the appellant's Fixed Deposit Receipts could not be attached in view of proviso (g) to Sub-Section (1) of Section 60 of the Code of Civil Procedure (hereinafter referred to as `the Code'). Ms.Shobha submitted that in the revision filed by the Bank against the said order of the Executing Court it was erroneously recorded by the High Court that the appellant had undertaken to produce the Matador before the Bank so that the same could be sold for recovery of the Bank's dues and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Gratuity Act, 1972, would not be liable to attachment for satisfaction of a Court's decree. 16. The same principle was reiterated by this Court in Union of India v Wing Commander R. R. Hingorani [(1987) 1 SCC 551] and Gorakhpur University and others v Dr. Shitla Prasad Nagendera and others [(2001) 6 SCC 591]. 17. However, in all fairness, Ms. Shobha also cited the decision of this Court in Union of India vs. Jyoti Chit Fund and Finance and Others [(1976) 3 SCC 607], where while dealing with the provisions of Sections 3 and 4 of the Provident Funds Act, 1925, prohibiting attachment of sums held by the Government, as well as proviso (g) to Section 60(1) of the Code, this Court held that till such time as amounts payable by way of provident fund, compulsory deposits and pensionary benefits did not reach the hands of the employee they retained their character as such and could not, therefore, be attached. However, once the amounts were received by the employee they ceased to retain their original character and, were, therefore, capable of being attached. Ms. Shobha urged that the aforesaid decision had been rendered long before the other decisions cited by her and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Bench, had indicated that once the monies covered by the provisions of the proviso to Section 60(1) of the Code had been paid to the concerned employee, they no longer retained their original character and were, therefore, amenable to attachment. 21. On the construction of the directions of the trial Court, which were subsequently altered by the High Court, Mr. Mehta urged that when the hypotheticated vehicle was not traceable, the Bank could not be left without remedy and it could not have been the intention of the Trial Court that even if the vehicle could not be apprehended the decree of the Bank would remain unsatisfied. If a pragmatic meaning is to be given to the language of the decree, it would have to be interpreted to mean that an attempt should first be made to realise the decretal dues by sale of the Matador, and, thereafter, to realise the balance dues, if any, from the solvent security to be produced by the appellant herein. The decree does not indicate that in the event the Matador could not be sold, the decree could not be executed at all against the other assets either of the Judgment Debtor or the guarantor. 22. Mr. Mehta urged that in Hingorani's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code. Except for the decision in the Jyoti Chit Fund and Finance case (supra), where a contrary view was taken, the consistent view taken thereafter support the contention that merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retiral benefits paid to the appellant. 26. The High Court, in our view, erroneously proceeded on the basis that a concession had been made by the appellant that he was willing to have the decretal amount adjusted partly from his fixed deposits, which represented his retiral benefits and that he had also volunteered to produce the vehicle before the Bank so that the same could be sold to recover the major portion of the dues. Further-more, although the Bank was entitled to proceed both against the principal-debtor and the guarantor for recovery of its dues, the mode of recovery was prescribed by the Trial Court, which, in our view, clearly indicates that ..... 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