juIN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No. 4203 OF 2010 BETWEEN: Kapil Chit Funds Pvt. Ltd., …PETITIONER AND T.David @ T.Devarath and others …RESPONDENT The Court made the following: THE HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No. 4203 OF 2010 ORDER: The revision is filed against the order of the I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, in E.P.No. 102 of 2008 in O.S.No. 978 of 2006, dismissing the application for attachment of the gratuity. 2. The decree holder has obtained the decree for recovery of amounts and in execution of the said decree, the retirement benefits of judgment debtor No.1 was sought to be attached by issuing prohibitory order. The execution petition was filed for recovery of Rs.2,93,876/-. The garnishee has sent that amount informing that it represents the gratuity amount. The lower Court considering that the amount is exempted from attachment under Section 60 of the Civil Procedure Code (for short, “the Code”), dismissed the application. Aggrieved by the said order, the present revision is filed. 3. The point that arise for consideration is whether the order of the lower Court in dismissing the Execution Petition is legal? 4. POINT: According to the counsel for the petitioner the execution petition was not filed for attachment of gratuity in particular and it was only filed for attachment of the retirement benefits of the judgment debtor No.1. Therefore, merely because the garnishee has stated that the amount available represents the lower Court should not have dismissed the execution petition. In fact, he has filed a letter issued by the employer of the judgment debtor No.1 stating that the judgment debtor No.1 will be entitled for a sum of Rs.1,89,740/- towards the leave encashment. According to him, this amount is not exempted under Section 60 of the Code. This fact has to be determined by the lower Court. According to the counsel for the respondent, the amount available was only the amount towards gratuity and the amount towards leave encashment is not available. It is for the garnishee to say whether this amount was paid even prior to the execution petition launched by the decree holder or whether such amount was paid subsequent to it. On consideration of the said material only, the Court can consider about the liability of the attachment. In case the leave salary was paid subsequent to it, the exemption claimed by the judgment debtor No.1 may not be available because the amount available represents all the benefits of the judgment debtor No.1. Therefore, the order of the lower Court is liable to be set aside. 5. Accordingly, the Civil Revision Petition is allowed, setting aside the order, dated 01-06-2010 in E.P.No.102 of 2008 in O.S.No.978 of 2006 on the file of I Additional Senior Civil Judge, Ranga Reddy District, at L.B.Nagar, and the lower Court is directed to make an enquiry as to what are the components of the amount of retirement benefits available to the judgment debtor No.1 by the date of prohibitory order and take into consideration the provisions under Section 60 of the Code and the liability of the amounts, which are available after retirement by the date of prohibitory order issued in the execution petition. The lower court is directed to dispose of the matter within six weeks. There shall be no order as to costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 04-03-2011. INL