1 FARAD CONSTITUTION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4809/2009 (Kailashchandra S. Autkar ..vs.. Govindrao K. Padmawar and others) -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. CORAM:- B.P. DHARMADHIKARI, J. DATE:- DECEMBER 01, 2009 Heard finally by consent of the parties. The petitioner is retired person and is assailing the order dated 12/10/2009 passed by Civil Judge, Senior Division, Akola in Regular Darkhast No. 19/2004 attaching 1/3rd of his pension amount per month for the purposes of satisfaction of money decree obtained by the present respondent No.1 on 20/3/2004 in Special Civil Suit No. 15/2003. The contention is because of the provisions of Section 60(1)(g) of the Code of Civil Procedure and Section 11 of the Pensions Act, 1871, the said amount has been given exemption/immunity from such attachment. Learned Advocate Shri A.S.Chandurkar for petitioner after inviting attention to the relevant provisions has contended that the relevant judgments were placed for consideration before the executing Court, but the order 2 passed is cryptic and there is refusal to exercise the jurisdiction in that respect. He further states that by attaching the pension, the jurisdiction not available has been exercised by that court. Learned counsel Shri J.B.Kasat appearing for respondent No.1, on the other hand, states that the petitioner after retirement has started his own business and is having income to the extent of Rs.500/- per day there from. He states that considering these facts, to facilitate recovery, the pension amount has been directed to be attached. He argues that the immunity or exemption from attachment of pension is applicable to only such retired persons, who do not have any other source of income. With the assistance of both the learned counsel, I have perused the papers and also the relevant provisions. The impugned order dated 12/10/2009 does not anywhere mention that petitioner has got any other source of income, though stand to that effect was taken in the application for attachment of the pension amount by present respondent No.1 before executing court. The provisions of Section 11 of the Pensions Act, 1871 exempt the pension from attachment and said section also nowhere states that such debtor should not have any other source of income. The provisions of Section 60(1)(g) of the Code of Civil Procedure also does not contemplate any such 3 circumstance so as to enable the pensioner to claim benefit thereof. Hence, in any case, the attempt of of learned counsel Shri Kasat to demonstrate that as petitioner has got some other source of income, his pension can be attached, has to fail. The judgment of Hon’ble Apex Court reported in A.I.R. 1976 Supreme Court 1163 in the case of Union of India ..vs. Jyoti Chit Fund and Finance and others, deals with the Provident Fund amount, but then considers the provisions of Section 60(1)(g) of Code of Civil Procedure and states that because of exemption/immunity granted, the said amount can not be attached. This judgment has been followed by the learned Single Judge of Hon’ble Karnataka High Court in the judgment reported in 1997(2) Kar.L.J. 331, in the case of Smt. Vasanthi Devi ..vs.. Vijaya Bank, Ashok Nagar Branch, Mangalore, wherein the facts are more or less identical. The learned Single Judge has, in addition, also considered provisions of Section 11 of the Pensions Act. The judgment clearly show that the said amount cannot be attached. In view of the judgment of Hon’ble Apex Court mentioned above and the provisions of Section 60(1)(g) of C.P.C. and Section 11 of the Pensions Act, the impugned order cannot be sustained. The same is accordingly quashed and set aside. The writ petition is allowed. 4 At the request of learned Advocate Shri Kasat, it is clarified that respondents are at liberty to such other legal steps as are available to him in the matter for recovery. Writ petition is disposed of. Rule accordingly. No order as to costs. JUDGE Diwale.