Report No. 54

Section 60(1), Proviso, clause (i)

1E.20. Under section 60(1), proviso, clause (i), "salary to the extent of the first two hundred rupees", and one-half of the remainder in execution of any decree other than a "decree for maintenance", is exempt from attachment. There is a proviso which runs as follows:-

"Provided that where such salary is salary of a servant of the Government or a servant of railway company or local authority, and the whole or any part of the portion of such salary liable to attachment has been under attachment, :whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution alone and the same decree, shall be finally exempt from attachment in execution of that decree."

1E.21. Two points were raised during our discussion on this clause; First, whether the limit of rupees two hundred should be increased in view of the fall in the value of the rupee; and, secondly, whether the proviso should continue.

1E.22. The first question requires a consideration of the history of the clause. The second requires an examination of the principle behind the proviso.

1E.23. As regards the first question, it may be stated that the amount originally exempt was twenty rupees. In 1923, it was raised to forty rupees.1 Certain changes were made2 in 1937, by which the salary of private employees was exempted to the extent of first hundred rupees and one half the remainder; and as regards public officers etc. the same exemption was given, and in addition, a proviso was added.

Clauses (h) and (i), as they stood before the amendment of 1937, exempted-

(h) allowances (being less than salary) of any public officer or of any servant of a Railway Company or local authority while absent from duty;

(i) The salary, or allowance equal to salary, of any such public officer or servant as is referred to in clause (h) while on duty, to the extent of forty rupees monthly where the salary exceeded forty rupees, and did not exceed eighty rupees monthly. The benefit of the clause was not available to a private employee.

1. Amendment Act of 1923.

1E.24. In 1937, for clauses (h) and (i), the following clauses were substituted,-

"(h) the wages of labourers or domestic servants, whether payable in money or in kind, and salary, to the extent of the first hundred rupees and one-half the remainder of such salary;

(i) the salary of any public officer or of any servant of a railway company or local authority to the extent of the first hundred rupees and one-half the remainder of such salary:

Provided that, where the whole or any part of the portion of such salary liable to attachment has been under attachment whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree."

1E.25. Some drafting changes were made in the clauses in 1943.1

1. Amendment Act 5 of 1943.

1E.26. The amount exempted from attachment was raised in 1963 to two hundred rupees,1 in view of the merger of dearness allowance in pay after the Report of the Second Pay Commission. We are of the view that the minimum amount exempt should now be further increased, in view of the fall in the value of the rupee.

1. Code of Civil Procedure (Amendment) Act (26 of 1963).

Recommendation to increase the amount in clause (i)

1E.27. Accordingly, we recommend that the amount should be raised to two hundred and fifty rupees. The net result will be that in case of persons who have a basic pay of rupees two hundred and fifty or less, the salary will be totally exempt, while in other cases, the exemption will also extend to one-half of the remainder.

1E.28. So far as the second question is concerned, apparently, the principle underlying the proviso seems to be that persons concerned with the sovereign functions of the State should receive special protection from attachment, so that the interests of the State do not suffer. While the principle was understandable at a time when the number of Government servants was small and the activities of the State were also limited, its continuance in this form at the present day is an anomaly.

Recommendation to delete the proviso, clause (i)

1E.29. We, therefore, recommend that the proviso to clause (i) should be deleted.

1E.30. On the question whether the exemption from attachment of wages includes bonus, recent case-law throws some light.

1E.31. An earlier Madras case took the view1 that bonus is not so exempt. A contrary view was taken by the Mysore High Court.2 And, in two recent Madras cases3 also, bonus has been held to be exempt. In the Madras case4, the Munsiff had attached the bonus of the defendant, in execution of a money decree. The High Court reversed this decision, holding that bonus should form part of the wages.5

In this case, it was also contended that the petitioner was a mechanic, and therefore not a "labourer" within section 60(1), proviso, Civil Procedure Code. As the question whether he was a mechanic or a labourer had not been gone into by the Court below, the case was reminded to the Munsiff's Court, for fresh disposal.

1. Mannuswami v. Vishvanafh, AIR 1957 Mad 773 (Ramaswami J.).

2. P. Nathamal v. Dasarath, AIR 1959 Mys 96 (Hegde J.).

3. Krishna Rao, AIR 1970 Mad 135.

4. Ganapathi Pillai v. Swaminathan Pillai, AIR 1939 Mad 440.

5. Krishna Rao, AIR 1970 Mad 135, following Ganapathi Pillai v. Swaminathan Pallai, AIR 1969 Mad 440.

1E.32. Though the case-law, as it stands at present, does not reveal a serious conflict, we think that it is better to clarify the position.

Recommendation

1E.32. Accordingly, we recommend the addition of the following Explanation below section 60(1), Proviso1-

"Explanation-"W ages" includes bonus."

"Explanation-"Labourer" includes a skilled or semi-skilled labourer."

1. Suitable numbers will have to be given to the Explanations.