IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 FAO.No. 165 of 2010() --------------------- AGAINST THE ORDER DATED 19/03/2010 IN IA 3899/2009 IN OS.910/2009 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- S.ABDUL AZEEZ, PROPRIETOR, FATHIMA CASHEW, KILLIKOLLOOR P.O., KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT(S): PETITIONER-PLAINTIFF/GARNISHEES ---------------------------------------------- 1. SHAHUL HAMEED, NISHAD MANZIL, DECENT JUNCTION, MUKHATHALA, KOLLAM. 2. SHAHUL HASSAN MUSALIAR, CHAIRMAN, T.K.M TRUST, KILIKOLLOOR, KOLLAM. 3. DIRECTOR, DIRECTORATE OF TECHNICAL EDUCATION, PAZHAVANGADI P.O., THIRUVANANTHAPURAM. R1 BY ADV. SRI.PRATHEESH.P SRI.A.MUHAMMED RAFFI ADV.SRI.K.G.ANIL BABU. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- F.A.O.No.165 OF 2010 ------------------------------------------- Dated this the 12th day of July, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.We have heard the learned counsel for the appellant and the first respondent plaintiff. Learned Government Pleader appears for the third respondent. Notice to the second respondent dispensed with. 2.The first respondent has filed a suit for recovery of money against the appellant. He filed an application seeking to restrain the defendant/appellant from collecting his service benefits due to him on retirement. He also sought an order restraining the employer second respondent from disbursing such funds. Neither the defendant nor the garnishee filed objections before the court below. That led to the impugned order. FAO.165/10 2 3.The court below has allowed the application merely on the ground that it is not opposed. The plea of the appellant that there could not have been an order of attachment or a restraint order against his collecting the retiral benefits is one that he could have raised reasonably before the court below. The components of pension, DCRG and other retiral benefits, which are insulated from attachment in terms of the Code of Civil Procedure, the Pension Act and other relevant laws, cannot be brought under the cover of attachment or injunction. Any outstanding due from the employer to the employee by way of arrears of salary and other incidentals which do not form part of pension or gratuity are amounts which can be considered for attachment. Unfortunately, may be due to the conduct of parties, the court below had not gone into such issues. Though we are satisfied that the impugned order does not stand, largely, it is the appellant's own making. He could not have stood before the court below FAO.165/10 3 tongue-tied to invite an order and then come to the appellate court compelling the plaintiff to meet this appeal before us. 4. For the aforesaid reasons, this appeal is allowed partly in the following terms: (i) The impugned order is set aside. (ii) The court below will take up the application afresh and consider it in accordance with law and pass appropriate orders within a period of three weeks from now, whether objections are filed or not. (iii) Respondents 2 and 3 shall not release to the appellant/defendant any amount towards arrears of salary or other dues which do not amount to pension, gratuity and such other amounts. The release of other amounts, if any, FAO.165/10 4 shall be subject to further orders that the court below may pass following the aforesaid direction. (iv) The appellant will pay the first respondent an amount of Rs.5,000/- as costs of this appeal. (v) The first respondent is authorised to produce copies of this judgment before respondents 2 and 3. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.12/07.