IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 OP(C).No. 768 of 2010(O) ------------------------ AGAINST THE ORDER IN EA.415/10 EP.34/09 IN OS.242/2001 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONERS ------------------------------- 1. NIRMALA KUMARI, W/O.MURALEEDHARAN NAIR, LEELA MANDIRAM, MIDALATH, KOTTAKKAKOM MURI, VITHURA VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM. 2. ARUNA M.NAIR (MINOR) LEELA MANDIRAM, MIDALATH, KOTTAKKAKOM MURI, VITHURA VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN NIRMALA KUMARI. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.B.S.PRASAD GANDHI RESPONDENT: --------------- VASUMATHI AMMA, D/O.GOWRI AMMA, CHANDRA VILASOM, PAYAVILA KARIKKAKOM, KOTTAKKAKOM MURI, VITHURA VILLAGE, THIRUVANANTHAPURAM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.768 of 2010 --------------------------------------- Dated this 18th day of November, 2010 JUDGMENT Judgment debtors in E.P.No.34 of 2009 in O.S.No.242 of 2001 of the court of learned Additional Munsiff, Nedumangad are the petitioners before me challenging Ext.P6, order directing respondent No.3 in E.A.No.415 of 2010 to deposit the amount attached in the execution proceeding. Respondent/decree holder filed the suit for recovery of money against deceased defendant No.1, predecessor-in-interest of petitioners. He died during pendancy of the suit and the court granted a decree to the respondent for realisation of the amount from the assets of deceased defendant No.1 inherited by petitioners. Respondent launched execution and filed Ext.P2, application under Rule 46 of Order XXI of the Code of Civil Procedure (for short, “the Code”) seeking attachment of certain amount deposited with respondent No.3 in E.A.No.415 of 2010 (State Bank of Travancore) alleging that the amount represented retiral benefits of deceased defendant No.1 received by petitioners and deposited in the account of petitioner No.1 with respondent No.3. Petitioners preferred Ext.P4, objection stating that defendant No.1 died on O.P(C).No.768 of 2010 2 : 06-02-2002 and that his retiral benefits were disbursed in the year 2003 and spent for other purposes. They also contended that the amount in deposit with respondent No.3 in E.A.No.415 of 2010 (the bank) was raised by petitioner No.1 by pledging ornaments of her sister. Rejecting that objection learned Munsiff passed Ext.P3, order of attachment. That was followed by respondent filing Ext.P5, application under Rule 46A of Order XXI of the Code to direct respondent No.3 (the bank) in that application to deposit the attached amount in court. In that application also, petitioners raised the same objection. Executing court by Ext.P6, order allowed the application and directed to deposit the attached amount in court. That order is under challenge. Learned counsel for petitioners has raised two contentions, namely; that in spite of retirement of deceased defendant No.1 the retiral benefits do not loose its character and is not attachable. Reliance is placed on the decision in Radhey Shyam Gupta Vs. Punjab National Bank and Anr. ((2009)1 SCC 376) and; secondly, at any rate, there is no evidence to show that the amount in deposit is the retiral benefits of deceased defendant No.1. 2. So far as the first contention is concerned, argument is based on Section 60(g) of the Code which states that stipends and gratuities allowed to pensioners are exempted from O.P(C).No.768 of 2010 3 : attachment. The details of retiral benefits of deceased defendant No.1 are available in Ext.P4, objection preferred by petitioners. It is not disputed that defendant No.1 expired on 06-02-2002 and Exts.P2 and P5, applications came thereafter. The Division Bench of this court in Sathyavathy Vs. Bhargavi (1991(1) KLT 866) has stated that exemption under Sec.60(1)(g) of the Code is not available to the legal heirs of the person who earned the gratuity amount. There, of course the amount was still in deposit with the department concerned and it was contended that the amount is held by the department in trust for the pensioner concerned. The Division Bench dispelled the contention and held that properties that are exempted from attachment should also satisfy the requirement that over such properties judgment debtor should have a saleable interest or it should be held in the name of judgment debtor or by another person in trust for him. Since admittedly the pensioner (in that case) had expired, it could not be said that the department was holding the amount in trust for the deceased employee. The principle underlying the decision is that the nature and character of the amount is lost when the pensioner is dead and the amount goes into the hands of his legal heirs. In this case it is admitted that defendant No.1 expired on 06-02-2002 and his retiral benefits where disbursed and received by the petitioners thereafter. In Radhey Shyam O.P(C).No.768 of 2010 4 : Gupta Vs. Punjab National Bank and Anr.(supra) it was held that retiral benefits does not lose its character when it is received by the retiree. But that was not a case where the retiree had expired at the relevant time. The Supreme Court only held that retiral benefits does not lose its character for the reason that it was not in the custody of the department concerned and it was disbursed to the retiree. That decision is distinguishable on the facts of the present case as the amount is received by the legal heirs of the retiree and in the light of decision of the Division Bench referred to above. Exemption under Sec.61(g) of the Code is not available to the amount in the hands of petitioners. Hence the first contention raised by petitioners cannot be accepted. 3. Then the next contention is on the facts of the case whether amount in deposit with the bank (respondent No.1 in Ext.P5, application) represented retiral benefits of the deceased. No doubt, petitioners have a contention that the said amount was raised by petitioner No.1 pledging ornaments of her sister. Learned counsel has pointed out from Ext.X1 and the impugned order that the amount came into the account of petitioner No.1 only on 31-01-2005. Learned counsel contends that it is difficult to believe that in spite of disbursement of retiral benefits in the year 2003, petitioner No.1 kept the amount in hand and deposited it in her account only on 31-01-2005. There is no O.P(C).No.768 of 2010 5 : evidence adduced by petitioners that the amount was raised by pledging ornaments. Petitioners have no case that they were not given opportunity to adduce evidence and at any rate there is no reason to think so. It is admitted that the retiral benefits of deceased defendant No.1 was inherited and received by petitioners. This is a case where retiral benefits which was the assets of deceased defendant No.1 was inherited by petitioners. Though petitioners have a case that retiral benefits were used to discharge certain other liabilities, there is no evidence in support of that contention. To the extent the retiral benefits of deceased defendant No.1 was inherited and received by petitioners, they are liable to the respondent. Moreover, Ext.P3, order of attachment of the amount was not challenged by petitioners. Ext.P6, order is only an order consequent to Ext.P3, order. So far as Ext.P3, order remains petitioners cannot challenge Ext.P6, order. In these circumstances also, I do not find reason to interfere with the impugned order. This petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-