Ramwati vs Krishan Gopal And Ors.
1987 Latest Caselaw 490 Del

JUDGMENT

P.K. Bahri, J.

1. The short but interesting question of law arises in this appeal as to whether gratuity which was payable to an employee, who has died, is liable to be attached against decree for recovery of money passed against heirs of the employee and the decree was executable only against the estate of the employee in the hands of his heirs.

2. The facts, in brief, are that Krishan Gopal, decree-holder, filed a suit for recovery of Rs. 1800 against Ramwati, Krishna Devi, Jasoda Bai and Baldev, daughters and son of Lakshmi Chand on the averment that Lakshmi Chand (since deceased) had borrowed Rs. 1450/- on April 3, 1964 and in consideration of which he executed a pronote agreeing to pay interest at 12% per annum. This suit was contested by defendants but was decreed on July 27, 1967 by Shri Shamsher Singh, Sub-Judge, with the direction that the decree would be executable against the estate inherited by the defendants from Lakshmi Chand, deceased.

3. The execution application was filed by the decree-holder seeking attachment of dues of Lakshmi Chand in the hands of Delhi Cloth & General Mills where the deceased was employed which included provident fund and gratuity. A sum of Rs. 1232/- was received from the Manager, Delhi, Cloth & General Mills, as balance of gratuity which was payable to the heirs of the employee, Lakshmi Chand. This amount was paid to the decree-holder in part satisfaction of the decree. This amount was received by the decree-holder from the Court on May 31, 1966. It is to be mentioned here that during the pendency of the suit itself, an application under Order xxxviii, Rule 5, Code of Civil Procedure, had been moved by the plaintiff-decree holder seeking attachment before judgment of the provident fund, bonus, gratuity and other dues of Lakshmi Chand in the hands of his employer. The attachment before judgment was issued vide order dated June 2, 1966 but on July 26, 1967 the Court passed the following order:

Head. The Provident Fund & Gratuity are not attachable. This attachment is withdrawn. Orders be issued accordingly. The learned Counsel for the plaintiff has no objection.

The attachment was as that time withdrawn. In respect of the amount of the decree, the decree-holder had filed another application for execution seeking attachment of house No. 521, Nai Basti Kishan Ganj, Delhi. Objections were filed in the said execution by the appellant pleading that the said house was not attachable as the same being the main residential house occupied by the appellant. In that objection petition the appellants also pleaded that they had come to know that the decree-holder has been able to obtain Rs. 1232/-, the amount of gratuity payable to their predecessor by his employer, which amount was not liable to attachment and the appellants were entitled to have the refund of that amount. Issues were framed on these pleadings but, however, the execution application came to be dismissed in default on April 7, 1966. Thereafter, the appellants moved an application praying that the decree-holder be required to refund the sum of Rs. 1232/- which had been received by the decree-holder under a wrongful attachment of the amount made by the Court. This application was contested by the decree-holder but was dismissed by the lower Court vide order dated February 17, 1968. The appeal filed was dismissed by the Additional District Judge vide order dated January 14, 1980 and this second appeal has been brought by the appellants seeking to set aside the orders of the lower Court and getting the relief of refund of the said gratuity amount. The facts indeed, are not in dispute. The gratuity payable to Lakshmi Chand was attached and was paid to the decree-holder in execution of the decree. The question which arises for decision is whether the said amount was attachable in law or not? Section 60(g) of the Code of Civil Procedure makes it clear that the provident fund and gratuities allowed to the pensioners of the Government or of a local authority or of any other employer or payable out of any service family pension fund notified in the official gazette by the Central Government or State Government in this behalf and political pensions, are not liable to be attached in execution of a decree. Admittedly, the gratuity in question was payable to Lakshmi Chand by his employer. If Lakshmi Chand and been alive he would have been definitely paid this gratuity and thus the same could not have been attached even if money decree had been obtained against Lakshmi Chand. The question which arises for decision is whether with the death of Lakshmi Chand the nature of the said gratuity has changed in its character or it has to be termed as the gratuity still payable to the deceased. There was nothing brought on the record by the appellants to show that the payment of gratuity was only a gratuitous act of the employer of the deceased. Whether the payment of gratuity was a gratuitous act of the employer or not would have depended on the terms of the employment of Lakshmi Chand with his employer. It is also possible that the Delhi Cloth & General Mills, the employer of Lakshmi Chand, was legally bound to pay the gratuity. Counsel for the appellants has cited Usman Abubakar Sani v. The Chief Accounts Officer, G.I.P. Railway 1943 (45) B.L.R. 816. In the said case the Rules and Regulations governing the employees of G.I.P. Railway were considered and it was found that the employer was not legally bound to pay the gratuity to its employees. It was in the discretion of the employer to pay the gratuity or not to its employee. In view of the peculiar rules governing the employees of G.I.P. Railway Company, the High Court came to the finding that till the amount is paid the same remains untouchable as the payment of gratuity was in the nature of gift and the gift is not complete till delivery of possession or the gift deed is executed and registered. So, in the light of the peculiar facts of the said case it was opined that mere fact that the gratuity has been adjusted in the account of the employee does not mean that the gift is complete so that amount could be attached as belonging to the employee. This judgment would not help the appellants because no rules or regulations governing the employees of Delhi Cloth & General Mills have been placed on record to show whether the employer was legally bound to pay the gratuity to employees during their life time on their retirement and after retirement to their legal heirs or the employer was legally not bound to pay such amount, and it was only in the discretion of the employer. The lower Courts have placed reliance on Diwan singh v. Kusumbai 1969 (14) M.P.L.J. (S.N.) 63. The facts of this case, as are apparent from the brief note of the judgment, are similar to the facts of the present case. In the cited case the gratuity which was payable to the employee was sought to be attached in the hands of the employer on the ground that it turned into the nature of a debt payable to the legal heirs of the employee. The High Court upheld the plea of the decree-holder and held that the amount of gratuity lying with the employer was attachable on the death of the employee as the amount becomes a debt payable by the employer to the legal heirs of the employee. Section 60(g) of the Code of Civil Procedure also speaks about gratuity allowed to the pensioners meaning thereby only if the gratuity is payable to the employee then the same is not liable to be attached. If the employee is dead, obviously the gratuity cannot be deemed to be payable to the employee. If the said gratuity becomes payable to the heirs of the employees, obviously the same becomes attachable in the hands of the employer as the employer is legally bound to pay the said gratuity to the legal heirs of the employee. I am in complete agreement with the ratio laid down by the Madhya Pradesh High Court in the aforesaid judgment and hold that this amount of gratuity which was attached by the court in the hands of the employer is not now liable to be refunded to the appellant.

4. Counsel for the appellants has argued that the order of the court made during the pendency of the suit by which it was held that the gratuity was not attachable operate as res judicata. In Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy , it was held that if by any erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not operate as res judicata. It was held in this very judgment that it is true that in determining the application of the rule of res judicata the court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue if it is one purely of fact decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be recorded as finally decided and cannot be re-opened. It was observed that a mixed question of law and fact determined in the earlier proceedings between the same parties may not for the same reason be questioned in the subsequent proceedings between the same parties. It was held that where the decision is not a question of law, the interpretation of statute, it will be res judicata in subsequent proceedings between the same parties, where the cause of action is the same for the expression "the matter in issue" in Section 11 C.P.C. means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. However, where the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.

5. In the present case it was purely a question of law with regard to the interpretation of Section 60(g) as to whether the gratuity is liable to attachment or not after the death of the employee and thus it went to the jurisdiction of the court regarding its power to attach the amount or not to attach the amount and any wrong decision of law cannot operate as res judicata. So, I hold that this appeal has no merit. I dismiss the appeal but in view of the legal question involved, I leave the parties to bear their own costs throughout.