The Kerala High Court on 4 January 2011 in P.K. Sasi Vs. Murukan Achari, 2011 (1) KLT 313 : 2011 (1) KLJ 383 : ILR 2011 (1) Ker. SN 1 (C.No. 5) : 2011 (1) KHC 131 held that “it cannot be said that attachment of salary cannot be made, on the ground that it would cause “a black mark on the service” or it would affect the “service records”.
The Hon’ble Mr. Justice K.T. Sankaran observed that “if such contentions are entertained and accepted, no decree holder would be entitled to proceed with the execution of the decree in his favour by the attachment of the salary of the judgment debtor.”
# The main grounds raised in the Writ Petition are the following :
- Court below ought to have found that the judgment debtor is an unfortunate victim of cheating. It was out of sympathy and believing the word of the decree holder he gave evidence deviating from his previous version. Now that version is being used as a weapon against him.
- Court below ought to have considered the fact that he is a public servant and if the attachment is made from his salary directly it will affect his service records.”
The learned counsel for the judgment debtor Unnikrishnan V. Alappatt submitted that in the criminal case, the offence alleged against the respondent (decree holder) was under Section 354 of the Indian Penal Code and the allegation was that he outraged the modesty of the wife of the petitioner.
At the time of trial of the criminal case, on the fervent appeal made by the respondent (accused), the judgment debtor and his wife deposed in such a way which led to the acquittal of the respondent. The Court observed that these contentions could be considered by the executing court.
If at all the judgment debtor could raise these contentions, it could be raised only in the trial court and before the appellate court. The judgment debtor cannot raise these contentions in execution. A contention which ought to be raised in the trial of the suit, if not so raised, cannot be raised in execution. Had petitioner and his wife raised such a contention in the suit and it was not accepted, then also, they are barred from raising the same in execution. Therefore, the Court not inclined to accept the aforesaid contention raised by the judgment debtor.
# Attachment of Salary
The other contention raised by the judgment debtor that if attachment of his salary is made, it would affect his “service records” and it would be “a black mark on his service”, is equally unsustainable.
While dismissing the Writ Petition the High Court held that when a decree is passed against the judgment debtor, he is bound to comply with the decree and pay the decree amount to the decree holder. He need not wait for execution of the decree.
Execution would be levied only on the failure of the judgment debtor to pay the decree amount. Attachment of salary is a mode of execution. When execution is levied by attachment of salary, necessarily, the amount would be deducted from the salary of the judgment debtor. Such attachment of salary is under due process of law.
It cannot be said that attachment of salary cannot be made, on the ground that it would cause “a black mark on the service” of the petitioner or it would affect the “service records” of the petitioner. Such a defence is not available to the judgment debtor. If such contentions are entertained and accepted, no decree holder would be entitled to proceed with the execution of the decree in his favour by the attachment of the salary of the judgment debtor.
The contention raised by the judgment debtor is quite alien to the defences which are available under Section 60 of the Code of Civil Procedure or under any of the provisions under Order XXI of the Code of Civil Procedure.
# Facts of the Case
The respondent instituted a suit before Munsiff’s Court, Thodupuzha against the petitioner and his wife for damages for malicious prosecution. The suit was decreed for a sum of ₹ 50,000/- and the decree was confirmed in appeal. The decree holder levied execution. He prayed for realising the decree amount by arrest and detention of the judgment debtor, by attachment of his salary and if the amount is not realised by the same, by attachment and sale of the immovable property belonging to the judgment debtor.
As a first step, the decree holder prayed for attaching the salary of the judgment debtor. The court below held that the attachable portion of the salary is ₹3,546/-, by the order impugned in this Writ Petition.