IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 36179 of 2008(F) -------------------------- AGAINST THE ORDER DATED 11/11/2008 IN IA 3672/08 IN OS.360/2006 of ADDL.SUB COURT,KOLLAM .................... PETITIONER(S): --------------- BABU CHACKO AGED 49 YEARS, S/O.CHACKO, BINDHU NIVAS, KAIKULANGARA, VADY, KOLLAM. BY ADV. SRI.SIVARAM SRI.R.KISHORE RESPONDENT(S): --------------- 1. YESDHODARAN PILLAI, AGED 78 YEARS RESIDING AT SANKARA VILASOM, MURUNTHAL, PERINADU, KOLLAM. 2. REJANI, W/O.SURESH, AGED 35 YEARS RESIDING AT SANKARA VILASOM, MURUNTHAL, PERINADU, KOLLAM. 3. YESHODA, W/O.YESHODARAN PILLAI,AGED 60 YEARS, RESIDING AT SANKARA VILASOM, MURUNTHAL, PERINADU, KOLLAM. 4. DIVISIONAL SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, VAZHUTHACAD THIRUVANANTHAPURAM. 5. ACCOUNTS OFFICER, (DAO) RAILWAY PROTECTION, FORCE VAZHUTHACAD THIRUVANANTHAPURAM. ADV. SRI.B.JAYASANKAR, SC, RAILWAYS FOR R4-5 SRI.A.AHZAR FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Counsel for the petitioner absent. Counsel for the respondents present. Writ petition is dismissed for default. 17-09-2009 Sd/-, P.Q.BARKATH ALI, JUDGE S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36179 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following relief: “To issue a writ of certiorari quashing Exhibit P3 order and allowing Exhibit P1 application.” 2. Petitioner is the plaintiff in O.S.No.360 of 2006 on the file of the Sub Court, Kollam. Suit is for recovery of money for a sum of Rs.3,35,000/- on the basis of a promissory note alleged to have been executed jointly by the first and second defendants. Second defendant is the daughter of the first defendant, who is now no more. On the death of the first defendant, his widow was impleaded as the third defendant. Deceased first defendant was employed in the railway. Petitioner/plaintiff applied for interim attachment of the service benefits due to the deceased defendant by way of gratuity, provident fund and commuted value of pension filing an application under Order 38 Rule 5 of the Code of Civil Procedure, in which, apart from his legal representatives, 2nd and additional 3rd defendants, concerned railway authorities were also impleaded as additional respondents in the petition. P1 is the copy of that application. Second W.P.C.No.36179/08 - 2 - defendant filed P2 objections to that application. Disputing the execution of the promissory note, among other contentions, it was also submitted that towards satisfaction of the suit claim the court had already passed an order of interim attachment of the property comprising the residential building of that defendant on the previous application moved by the plaintiff. The learned Sub Judge, after hearing both sides, dismissed P1 application by P3 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioner relying on Sathyavathy v. Bhargavi (1991(1) KLT 866) contended that protection from attachment of gratuity amount and other pensionary benefits as covered by Section 60(1)(g) of the Code of Civil Procedure is available to the concerned employee so long as it remains to be held in his name or by any other person in trust for him. After the death of the employee, the amount due to the legal heirs of the employee from the department is an asset of the deceased and it is liable for his debts. So much so, the interim order of attachment sought for by the petitioner/plaintiff in respect of the W.P.C.No.36179/08 - 3 - pensionary benefits of the deceased first respondent from his employer should have been allowed by the court irrespective of the fact that there was a previous attachment over the immovable property on the application moved earlier. Learned Sub Judge was not justified in holding that there was no change of circumstance after the previous attachment for dismissing the application, according to the learned counsel. On the other hand, learned counsel for the respondents/defendants 1 and 2 contended that no interference with P3 order of the learned Sub Judge declining additional attachment before judgment is called for, in the facts and circumstances of the case, invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 4. Perusing P3 order, it is seen, after taking note of the decision rendered by this court in Sathyavathy v. Bhargavi (1991(1) KLT 866) in which it has been held that after the death of an employee, gratuity amount due to him is only his assets liable for his debts and such amount is liable to be attached, the learned Sub Judge has disallowed the attachment sought for, for the reason that there was already a previous attachment over 3.5 ares of property comprising a terrace building to secure the suit claim. No change of circumstance W.P.C.No.36179/08 - 4 - to order additional attachment towards security of the suit claim, according to the learned Sub Judge, has been made out by the plaintiff. On the facts presented and the submissions made with reference to P3 order, I find the view taken by the learned Sub Judge with respect to the absence of any change of circumstance after the passing of the previous order of attachment necessitating a fresh attachment as desired by the plaintiff deserve acceptance and it is not liable to be displaced without strong reasons being shown that there was, in fact, substantial change of circumstance after the passing of the previous order of attachment. No such change of circumstance has been brought to my notice after the passing of the previous order of attachment in the suit. Further more, it has to be pointed out the decision Sathyavathy v. Bhargavi (1991(1) KLT 866) rendered by a Division Bench of this court can no more be considered as a good law in view of the recent decision rendered by the apex court in Radhey Shyam Gupta v. Punjab National Bank [ (2009) 1 S.C.C. 376]. In the above decision, the apex court has held that even after the death of the employee, his pensionary benefits are insulated from attachment. In analysing the question whether pensionary benefits of an employee after his death could be W.P.C.No.36179/08 - 5 - attached towards a decree debt and whether it still continues to be exempted under Section 60(1)(g) of the C.P.C., the apex court in the above decision has held thus: “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 Section 60(1) CPC proviso (g).” So much so, on that count as well, the second application for attachment moved by the petitioner/plaintiff for attaching the pensionary benefits due to the first respondent who is now no more could not have been entertained, and so much so, the dismissal of that application vide P3 order does not warrant any interference. P3 order on that ground as well deserve only to be upheld and I do so. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE