IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 FAO.No. 185 of 2005() --------------------- AGAINST THE ORDER IA 1224 2005 IN OS.307/2004 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT: --------------------------------------------------------------------- SHEEBA C.THOMAS, W/O.SIBY THOMAS, PARAYIL, AMBIKA MARKET, VECHOOR KARA, VAIKOM TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): PETITIONER & 2ND RESPONDENT/PLAINTIFF: ---------------------------------------------------------------------------------------- 1. ROSAMMA THOMAS, W/O. THOMMAN THOMAS, CHITTOKALAM, KUMARAKOM VILLAGE, KOTTAYAM TALUK. 2. PRINCIPAL, ST.MICHAEL'S HIGHER SECONDARY SCHOOL, KUDAVECHOOR, AMBIKA MARKET, KOTTAYAM. ADV. SRI.M.NARENDRA KUMAR FOR R1 SMT.LEENA KRISHNAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 185 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2009. JUDGMENT Raman, J, This is an appeal against an order allowing the petition for attachment before judgment. The operative portion of the order reads thus: “In the result the petition is allowed and the first respondent is directed to furnish security to the tune of Rs.2,44,800/- (Rupees Two lakhs forty four thousand and eight hundred only) (plaint amount) on or before 4.10.2005 and the meanwhile conditional attachment of the arrears of salary is granted prohibiting the second respondent disbursing officer from disbursing the arrears of salary of the first respondent/defendant.” 2. The appellant is the defendant in the suit. The suit is one for money alleging that the appellant has no other valuable asset or property other than the salary arrears proposed to be released in favour of him by the second respondent. The appellant filed counter affidavit contending that the petition itself is not maintainable and also denied the execution of the promissory note. At the time of argument however, has taken up a ground that the subject matter of the property FAO/185/2005. 2 is exempted as per Section 60(1)(i) of the Code of Civil Procedure and hence the petition be dismissed. After referring to the contentions of either side and after referring to the decision of the Apex Court reported in Union of India v. Smt. Hira Devi (AIR 1952 SC 227) the court held that exemption for attachment of the salary under Section 60(1)(i) of the CPC will not apply to arrears of salary. It is against the said order the present appeal is filed. 3. Learned counsel for the respondents contended that the appeal is not maintainable and assuming that the appeal is maintainable, he sought to support the order impugned in this appeal on merits. But learned counsel appearing for the appellant contended that the order now passed by the court below is virtually under Order 38 Rule 6 of the CPC though in the operative portion of the order it is said that the attachment is effected in case he is not furnishing security on or before a particular date. It is his contention that though Order 38 Rule 5(3) also provides for a conditional attachment of the whole or any portion of the property so specified, the present order is one passed under Rule 6(2). Thus according to him, if it is an order passed under Order 38 Rule 6, it is an appealable order. It is also contended that there is no material difference between salary and arrears of FAO/185/2005. 3 salary. If the salary remains unpaid for a period, even after the due date it becomes arrears and according to him there is no logic in treating the arrears of salary different from salary. Learned counsel also placed reliance on the decision of this court reported in Nalluswamy v. Veemban (1987(2) K.L.T. 153). 4. We heard the parties. 5. No doubt Order 38 Rule 5 of CPC provides for a conditional attachment of the whole or any portion of the property specified or to show cause why such a security should not be furnished. However, it is not necessary that in all cases the court should also pass a conditional order of attachment. It can merely call upon the defendant to show cause as to why order of attachment before judgment shall not be passed. In case the court directs the defendant to show cause, then, the defendant on showing cause, the court may either dismiss the application or if he fails to show cause, it can pass an order under Rule 6 and make the attachment absolute. Here, the defendant by filing his counter affidavit has attempted to show cause as to why he should not be called upon to furnish security. That has been gone into by the court below and by an elaborate order rejected his contention. Thereby the opportunity to show cause having been availed by the defendant, the court having considered the same and having passed the FAO/185/2005. 4 order, virtually it is an order under Order 38 Rule 6 of CPC and therefore we are of the view that this is an appealable order. 6. Coming to the merits of the contention, it has to be found that the Apex Court in Union of India v. Smt. Hira Devi was considering a case where the question arose was (i) whether a receiver can be appointed for taking custody of the provident fund amount? and (ii) whether the arrears of salary is attachable? After referring to the provisions contained in the Provident Fund Act, 1925, it was found that provident fund is a compulsory deposit and it does not cease to be so merely because it was not paid on the due date and it is still lying in the account. While considering the question as to whether arrears of salary is attachable, the court held that the above conclusion does not however apply. Thus the Apex Court held that execution cannot be sought against the provident found money by appointment of a receiver. However, with regard to arrears of salary, it was held as follows: 'This conclusion does not, however, apply to the arrears of salary and allowance due to the judgment debtor as they stand upon a different legal footing. Salary is not attachable to the extent provided in S.60, CPC Clause (1), but there is no such exemption as regards arrears of salary.” FAO/185/2005. 5 This answers the contention raised by the appellant. That decision was rendered as early as in 1952 and has stood the test of time. The legislature has not chosen to amend Section 60 Clause 1(i) of CPC. Further being a decision of the Apex Court, we are bound by the said decision under Article 141 of the constitution of India. Though learned counsel appearing for the appellant placed reliance on the decision of this court in Nalluswamy's case, we have perused the said decision and found that the decision of the Apex Court has never been brought to the notice of the court. However, in the light of the decision of the Apex Court, it has to be held that the decision in Nalluswamy's case is per incuriam. Following the decision of the Apex Court, we find that the order passed by the court below does not suffer from any illegality. Accordingly, we find no merit in this appeal. It is dismissed. No order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.