(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:
Provided that the following particulars shall not be liable to such attachment or sale, namely
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ADVERTISEMENTS:
(a) The necessary wearing-apparel, cooking vessels, beds, and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;
(b) Tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;
(c) Houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him;
(d) Books of account;
ADVERTISEMENTS:
(e) A mere right to sue for damages;
(f) Any right of personal service;
(g) Stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions;
(h) The wages of labourers and domestic servants, whether payable in money or in kind;
ADVERTISEMENTS:
(i) Salary to the extent of the first ‘[one thousand rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance: Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree;
(i-a) one-third of the salary in execution of any decree for maintenance;
(j) the pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, applies;
(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment;
(k-a) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968, for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;
(k-b) all moneys payable under a policy of insurance on the life of the judgment-debtor;
(k-c) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;
(l) any allowance forming part of the emoluments of any servant of the government or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension;
(m) An expectancy of succession by survivorship or other merely contingent or possible right or interest;
(n) A right to future maintenance;
(o) Any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; and
(p) Where the judgment-debtor is a person liable for the payment of land revenue, any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.
Explanation I:
The moneys payable in relation to the matters mentioned in clauses (g), (h), (i-a), (j), (1) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.
Explanation II:
In clauses (i) and (ia), ‘salary’ means the t total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.
Explanation III:
In clause (1) “appropriate Government” means
(1) As respects any person in the service of the Central
Government, or any servant of a Railway Administration or of a cantonment authority or of the port authority of a major port, the Central Government;
(ii) As respects any other servant of the Government or a servant of any other local authority, the State Government.
Explanation IV:
For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a skilled, unskilled, or semi-skilled labourer.
Explanation V:
For the purposes of this proviso, the expression ‘agriculturist’ means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer.
Explanation VI:
For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land
(a) By his own labour, or
(b) By the labour of any member of his family, or
(c) By servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.
(1-A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.
(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.
Salary:
In view of the merger of dearness allowance with the pay, the attachable portion of the salary in execution of a decree has increased. The Code of Civil Procedure (Amendment) Act, 1976, has with a view to alleviating the hardship likely to be caused by the increase in the attachable portion of the salary (a substantial part of which was not previously attachable), raised the limit of exemption from attachment of a salary in execution of a decree to rupees four hundred and two-thirds of remainder of the salary.
Sub-clause (i) of section 60(1) has accordingly been amended so as to provide that salary to the extent of the first four hundred rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance is not attachable.
Further, where any part of such portion of the salary as is liable to attachment has been under attachment whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and where such attachment has been made in execution, of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree.
Under the provisions of clauses (ka) and (kb) to sub-section (1) of section 60 it has been enacted that deposits under the Public Provident Fund Act, 1968, and all moneys payable under a policy of insurance on the life of the judgment-debtor are exempt from attachment.
In Explanation IV in the definition of ‘labourer’ unskilled labourer has also been included. Further, under Explanations V and VI an agriculturist for the purposes of being granted exemption from attachment under the provisions of the Code, means a person who cultivates land personally or by his own labour or the labour of any member of his family or the servants or labourers on wages payable in cash or in kind, and who depends for his livelihood mainly on the income from agriculture.
The proviso to section 60(1), C.P.C. merely inhibits the oppressive and tormenting process of subjecting the same judgment-debtor to the process of the law at the instance of identical decree-holders without a respite if the attachment of salary continued for a period of 24 months whether continuously or intermittently.
If the attachment of salary for a total period of 24 months continued in execution of the same decree, then it is not a question of respite, but a total exemption from attachment in execution of that decree.
But that proviso is not having the effect of operating as an automatic discharge or satisfaction of the decree simply by reason of the attachment having been made for 24 months in execution of the same decree. If further amounts are due under the decree the decree-holder will definitely be entitled to have it realised by other available methods of execution provided there is no other bar.
Under the proviso to section 60(1), when a portion of salary is under the attachment to the permissible extent in execution of the same decree for a period of 24 months there is a complete exoneration from further attachment in execution of that decree. Explanation II to section 60(1) says that for the purposes of clauses (i) and (ia) of the proviso ‘salary’ means the total monthly emoluments, excluding any allowance declared exempt from attachment, derived by a person from his employment whether on duty or on leave.
The effect of the exemption is that no execution can be levied in respect of such salary thereafter. Explanation I to section 60(1) proviso says that exemptions from attachment are available whether before or after the amounts are payable.
That means exemption is available even when salary fell into arrears and became payable to the employee. Even at that stage it will not cease to have the character of salary exempt from attachment. If exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution or by garnishee proceedings, the protection afforded by the section is to a great extent lost.
It will be an improper use of that remedy to employ it to avoid the very definite bar created by the statute. The provision is by way of public policy and any method direct or indirect to overcome it cannot be allowed. Amounts exempted from attachment will not cease to be so simply because it fell into arrears and remained with the employer to be paid to the employee on a later date.
A bank employee does not become Government employee merely because the bank is owned and controlled by the Government. Where the bank employee under suspension was being paid the total amount due payable to him on account of salary, it would be unrealistic to term the payment as one protected by section 60(1)(1), C.P.C., simply because the amount is being styled as subsistence allowance and not salary.
Protection of section 60:
It is not open to a judgment-debtor to waive the protection which section 60, C.P.C., gives him, and an agreement or compromise which has “that effect is not enforceable in law and is, therefore, void.
Meaning of Property:
A right to purchase shares for an agreed consideration or even an option to do so is a right to property under a completed contract. Such a right is a beneficial interest in movable property, which is itself movable property, assignable and transferable. The benefit under the contract is not made non-assignable by a mere condition that for the purchase of the shares certain consideration has to be paid. Such a right can also be a subject-matter of an attachment.
Meaning of tools:
The term ‘tools’ occurring in section 60(l)(b) includes not only simple instruments but also complicated mechanical implements (such as a cutting press, a machine for processing plates and pieces of dies used by a goldsmith) used by artisans for purpose of their trade.
A goldsmith is an artisan because he is a handicraftsman who is engaged in one of the industrial arts of trade and makes a living by selling articles which he makes.
Who is agriculturist?
The object of section 60(l) (c) is to afford protection to the class of persons who engage themselves in the tilling of the soil and whose livelihood depends upon the proceeds derived from the tilling of the soil. It is not necessary that the person claiming the benefit of section 60(l)(c), C.P.C. must himself or herself actually cultivate the land.
That the whole of the cultivation is carried on through paid servants does not make him or her any the less an agriculturist within the meaning of section 60(l)(c), if he or she is still dependent upon the lands. This is further borne out from the Explanations V and VI added to section 60.
The terms of the compromise decree provided that the defendant would be liable to be evicted after expiry of ten years from suit property by appropriate action in a court of law. The defendants cannot be evicted in execution of compromise decree. Ejectment by appropriate action in a court of law meant ejectment by taking action by filing suit or taking any other proceeding in a court of law.
A tenant’s right of protection by provisions of the Rent Act can only be adjudicated properly in an appropriate proceeding and not in execution of a decree. Had the intention been to allow the defendants only permissive possession for a period of ten years, and ejectment thereafter in executing the compromise decree, the decree would have so provided.
Where it is admitted that the judgment-debtors are agriculturists and that they have no other house in their occupation it is an inevitable conclusion that they are occupying the house for agricultural purpose and no further evidence is needed on the point. Where the attachment was made before judgment, it is not invalid under section 60(c), C.P.C. which forbids attachment “in execution of a decree” and therefore an order of the court directing the attachment to continue till the debt is paid off does not contravene any provision of law.
The Allahabad High Court has held that the receipt of pension by a retired soldier or policeman would not affect his status as an agriculturist and he would be entitled to the protection given by section 60(c), C.P.C., which prohibited the attachment or sale of a house and other buildings belonging to an agriculturist and occupied by him. There was no reason to limit the scope of the protection given by section 60(c) to those whose main source of income was derived from the cultivation of land.
The intention of the legislature obviously is to preserve and promote the efficient cultivation of the land, that is to say, to encourage agriculture which is the main industry of this country. In that view of the matter, there is no reason to deprive a person of the benefit and protection of this proviso, if he fulfills the test of a person engaged in agriculture and also has other sources of income such as pension or profit from investment.
It is not necessary that a person, in order to qualify as an agriculturist within the meaning of section 60(c) must show that agriculture is the main source of livelihood. He is under no obligation to prove that he is a prosperous or successful agriculturist. Such an interpretation is not warranted by the word ‘agriculturist’ and would result in great injustice to poor agriculturists.
As long as a person remains in the village and cultivates his land, he has the status of an agriculturist and is entitled to the protection of section 60(e), C.P.C., whatever the size of his side income. Residence in the village plus cultivation is strong proof that a person has not abandoned his calling of agriculturist, whatever his other sources of income. When the above conditions are satisfied, the receipt of a pension, however large; does not deprive a person of the status of an agriculturist.
Section 60 (1) (ccc) as amended by Punjab provides exemption from attachment and sale of residential house of judgment-debtor. Where as a result of earlier decision, judgment-debtor got a negative declaration that she continued to be owner in possession of houses she would be entitled to claim exemption from attachment or sale under CI. (ccc) of S. 60 (l).
The amount earned by the deceased employee-judgment-debtor as gratuity which has become payable to the legal representatives of the deceased employee is not exempt from attachment under section 60(l) (g), C.P.C. The amount to be paid to the legal representatives of the deceased though once called gratuity payable to the worker, after the death of the worker; it is an amount due from the Department which had lost the character of gratuity payable to the worker.
After the death of the worker, it is an amount due from the Department which had lost the character of gratuity, now payable to the legal representatives of the deceased employee. It can only be a debt to be paid to the legal representatives of the deceased.
Being the legal representatives of the deceased, they have got a claim to get the amount which was earned by the deceased employee as gratuity. Since it is only a debt in the hands of the Department, there is nothing wrong in attaching the property for realisation of the amount due from the judgment-debtor.
It is no doubt true that section 60(l)(k), C.P.C. exempts provident fund amount from being attached in execution of a decree, but that exemption will be available only till it continues to be provident fund amount in the hands of the trustees and not after it is received by the employee on his retirement; attachment is possible and lawful and the exemption provided in section 60(l)(k) will not be available.
Provident fund amounts, pensions and other compulsory deposits covered by the provisions of section 60, C.P.C. retain their character until they reach the hands of the employees. When once the amount is received by the employee on his retirement, attachment is possible and lawful and the exemption provided in section 60(l)(k) will not be available.
Right to receive offerings:
The right of the judgment-debtor to receive offerings from Kalkaji temple in Delhi cannot be sold in execution of a decree under section 60(l)(f), C.P.C.
Gratuity:
Gratuity amount due from a postal department to the heirs of a deceased judgment-debtor is exempt from attachment under section 60(l)(g), C.P.C.
Wages:
Section 60(1) clause (h) applies only to such labourers and domestic servants whose wages do not exceed the amount mentioned in clause (i), i.e., Rs. 400 per month. ‘Wages’ is used in the same sense as ‘salary’.
In the Explanation IV to proviso to section 60(1) wages includes bonus and ‘labourer’ includes ‘skilled’, ‘unskilled’ or ‘semiskilled. Neither in section 60(l)(c) nor in Explanation 4 it has been mentioned that skilled, unskilled or semi-skilled labourer is limited to only agricultural labourer. A ‘labourer’ is a person who earns his daily bread by personal manual labour, or in occupations which require little or no art, skill or previous education.
A mason by virtue of the nature of the work that has been done by him can be termed as a skilled labourer. Therefore, the judgment-debtor who is a mason and who is residing in his own residential house is entitled to claim that his residential house is not liable to attachment and sale in execution of a decree as he is a skilled labourer and he is entitled for the benefits of section 60(l)(c), read with Explanation IV to the proviso.
Maintenance of wife:
Under section 60(1) (n) of the Code of Civil Procedure, a right to future maintenance is not attachable. This is analogous to section 6(dd) of the Transfer of Property Act which says that a right to future maintenance cannot be transferred. Once the maintenance amount has accrued, and especially when the same is deposited into Court, the money so accrued or deposited does not remain a mere right to future maintenance.
Both under section 60(l)(n) of the Code of Civil Procedure, and section 6(dd) of the Transfer of Property Act, what is not attachable or transferable, as the case may be, is not ‘future maintenance’, but ‘right to future maintenance’.
Once the right is exercised and the same fructifies into a quantified amount which has actually come into Court, it cannot be called a mere right to future maintenance. In such a contingency the right transforms into cash. Once that stands to the credit of the respondent, it is attachable.
What is future maintenance at a particular time would become arrears of maintenance at a later point of time. Maintenance which has accrued and is in arrears can never be described as a mere right to future maintenance. The maintenance-holder can dispose it of otherwise and on the person dying intestate the amount would go only to the legal representatives.
The fact that a right of maintenance is only a personal right of the person on whom the right is conferred either by a decree of civil court or order of a criminal court or otherwise has nothing to do with the question of maintenance which had accrued and is in arrears; such amount is the property of the person who is entitled to get the maintenance.
Provident Fund:
The provident fund of the judgment-debtor (a railway employee) is not liable to attachment having regard to the provisions of section 60, Civil Procedure Code, and section 3 of the Provident Funds Act. Even if the debtor agrees to the attachment of his salary waiving the rights conferred on him by section 60, C.P.C., still the attachment is illegal and should be raised, as such an agreement is opposed to public policy, void and unenforceable.
Attachment of movable property:
Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure and the attaching officer shall keep the same in his own custody, but if it is subject to speedy and natural decay, or when the expense of keeping it in custody and natural decay, is likely to exceed its value, the attaching officer may sell it at once. (Order XXI, Rule 43).
Where the movable property is not in possession of the judgment-debtor, the attachment shall be made by a written order prohibiting the person in possession of the same giving it over to the judgment-debtor.
Attachment of Agricultural produce:
Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment—(a) where such produce is a growing crop, on the land on which crop has grown, or (b) where such produce has been cut or gathered, on the threshing-floor or fodder-stack on or in which it is deposited, and another copy on the outer door or some other conspicuous part of the house in which the judgment-debtor ordinarily resides, or, with the leave of the court, where he carries on business or personally works for gain or in which he is known to have last resided or carried on business or personally worked for gain; and the produce shall thereupon be deemed to have passed into the possession of the Court. (Order XXI, Rule 44).
Attachment of house for recovery of decretal amount:
Where the house belonged to partners of firm. Held that firm would also fall within category of judgment-debtor. As such property being solitary one would not be subject to attachment.