B.Anjaiah vs Jelli Subba Rao
2022 Latest Caselaw 5367 Tel

      HON'BLE SRI JUSTICE A.SANTHOSH REDDY

      CIVIL REVISION PETITION No.2008 of 2017

ORDER:

This civil revision petition is filed to set aside the order,

dated 21.02.2017, passed in E.P.No.133 of 2016 by the learned

Principal Senior Civil Judge at Kothagudem.

2. Heard the learned counsel for the petitioner/decree-holder

and the learned counsel for the respondent-Judgment debtor. None

represented the respondent Nos.2 to 4. Perused the record.

3. Briefly stated, the facts are that the petitioner, who is the

plaintiff and decree-holder, filed O.S.No.1347 of 2014 on the file

of Principal Senior Civil Judge's Court, Ranga Reddy District

against the first respondent, who is the defendant/judgment debtor,

for recovery of an amount of Rs.9.00 lakhs. Along with suit, he

also filed I.A.No.1071 of 2014 and obtained orders of attachment

of retirement benefits of the firs respondent against respondent

Nos.2 and 3/garnishee. Subsequently, the suit was decreed. The

petitioner filed E.P.No.133 of 2016 before the Principal Senior

Civil Judge, Kothagudem to call for the amount and to pay the

same to the decree-holder towards satisfaction of the decree and

judgment dated 29.12.2014 in O.S.No.1347 of 2014. The trial

Court passed order on 21.02.2017 closing the E.P.No.133 of 2016,

which reads as under:

" Perused the letter of the garnishee dated 24/28-1-2017 the letter issued by the garnishee to the J.Dr dated 15/16-2- 2017. It is understood that the garnishee has withhold the amount from the gratuity. It can also be observed from the letter of the garnishee dated 24/28-1-2017 that the garnishee has stated that gratuity is not attachable. The counsel for J.Dr relied on the decision rendered in between Calcutta Dock Labour Board and another vs.Smt.Sandhya Mitra and others by the Hon'ble Apex Court dated 11-2-1985 vide 1985 AIR 996. Upon perusal of the order of this Court it can be observed that it was directed to send the attached amount as per Sec.60 CPC. In view of the above discussion since the amount pertains to gratuity and no other amounts are shown to be available from the letter of the garnishee, the attachment is hereby vacated and the EP is closed accordingly."

4. Learned counsel for the petitioner/decree-holder submits that

the trial Court ought not to have closed the proceedings in the

Execution Petition and he would have allowed to continue the

same, as the attachment order was passed in I.A.No.1071 of 2014

against respondent Nos.2 and 3/ Garnishee to withhold an amount

more than Rs.12.00 lakhs along with gratuity and other retirement

benefits and other amounts that were available. The trial Court

committed error by closing the proceedings in Execution Petition

and prayed to set aside the impugned order.

5. Learned counsel for respondent No.1/judgment debtor

submits that no attachment order can be passed against the gratuity

amount and therefore, the impugned order does suffer from any

infirmity.

6. In Gudapati Hanumaiah v. Y.Lakshminarsamma1, this

Court held that amounts representing gratuity, the provident fund

and other compulsory deposits, which a Government servant is

entitled to, are exempted from attachment until they are actually

paid to the Government servant who is entitled to on retirement or

otherwise and the natures of the dues.

7. A perusal of the material on record would disclose that the

trial Court has closed the proceedings in Execution Petition by

recording that garnishee addressed a letter stating that only gratuity

amount is available and no other amounts are available with him.

As the gratuity amount is exempted from attachment, as no other

amounts are available with him, the trial Court has rightly closed

AIR 2009 AP 129

the proceedings in Execution Petition and passed the impugned

order. The impugned order does not suffer from infirmity.

8. However, the closure of proceedings in the Execution

Petition does not disentitle the petitioner/Decree-holder to avail the

remedies available in law for the realization of the decreetal

amount from respondent No.1/judgment-debtor.

9. With the above observations, this civil revision petition is

dismissed. Miscellaneous applications, if any, pending shall stand

closed.

_______________________ A.SANTHOSH REDDY, J

27.10.2022

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