SHAHEENA vs L A PARAMESHWARA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
RD
DATED THIS THE 23 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.19310/2021 (GM-CPC)
BETWEEN:
SHAHEENA
W/O LATE BABU
AGED ABOUT 53 YEARS
R/O NO.42-A, RAILWAY QUARTERS
MOOPA COMPOUND, CHAMEGOWDA AREA
OLD TOWN, BHADRAVATHI 577301
SHIVAMOGGA DISTRICT.
…PETITIONER
(BY MR. GURU PRASAD, ADV., FOR
MR. S.V. PRAKASH, ADV.,)
AND:
1. L.A. PARAMESHWARA
S/O ARJUN
AGED ABOUT 47 YEARS
R/O CHAMEGOWDA AREA
OLD TOWN, BHADRAVATHI 577301
SHIVAMOGGA DISTRICT.
2. AHMED
S/O LATE BABU
AGED ABOUT 32 YEARS
R/O NO.42-A, RAILWAY QUARTERS
MOOKA COMPOUND, CHAMEGOWDA AREA
OLD TOWN, BHADRAVATHI 577301
SHIVAMOGGA DISTRICT.
Digitally signed
by RUPA V
Location: HIGH
COURT OF
KARNATAKA
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3. ASIF BASHA
S/O LATE BABU
AGED ABOUT 27 YEARS
R/O NO.42-A, RAILWAY QUARTERS
MOOKA COMPOUND, CHAMEGOWDA AREA
OLD TOWN, BHADRAVATHI 577301
SHIVAMOGGA DISTRICT.
…RESPONDENTS
(BY MS. SHARANYA K, ADV., FOR
MR. S. KALYAN BASAVARAJ, ADV., FOR R1
NOTICE STANDS WAIVED IN RESPECT OF R2 & R3
V/O/DTD:08.11.2021)
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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 03.06.2021 PASSED BY THE COURT OF LEARNED
PRINCIPAL CIVIL JUDGE AND JMFC, BHADRAVATHI IN EX.CASE
NO.70/2019 PRODUCED AS PER ANNEXURE-C TO THE WRIT
PETITION AND THEREBY CONSIDER THE OBJECTIONS MADE BY
THE PETITIONER IN EX.CASE NO.70/2019 & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
17.07.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed challenging the order dated
03.06.2021 passed in Ex.Case No.70/2019 by the Principal
Civil Judge and JMFC, Bhadravathi (for short, 'the
Executing Court’).
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2. Sri.Guru Prasad, learned counsel appearing for
Sri.S.V.Prakash, learned counsel for the petitioner submits
that the respondent No.1-decree holder has filed an
execution petition seeking to execute the decree in
O.S.No.109/2016 against the father of the respondent
Nos.2 and 3 and seeking to attach the death benefits of
late Babu. The Executing Court, without considering the
objections of the judgment debtors, passed an order of
attachment of gratuity amount and ordered to release
Rs.3,00,000/- which is impermissible. In support of his
contentions, he placed reliance on the decision of this
Court in the case of SRI G.NARAYANA RAO Vs.
1
V.R.NAGMANI AND ANOTHER and seeks to allow the
petition.
3. Per contra , Kum.Sharanya K., learned counsel
appearing on behalf of Sri.S.Kalyan Basavaraj, learned
counsel for the respondent No.1 supports the impugned
1
ILR 1996 KAR 3246
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order of the Executing Court and submits that the property
of deceased Babu became an estate of the family and the
judgment debtors are liable to pay the decretal amount
and attachment of the amount by the Executing Court is
permissible as the attachment is not the gratuity amount
of the employee but it is an estate after his death. In
support of her contentions, she placed reliance on the
decision of the Delhi High Court in the case of BUREAU
OF OUTREACH AND COMMUNICATIONS AND DD
M/O INFORMATION OF BROADCASTING Vs. CANARA
2
BANK and the decision of the Madras High Court of
Madurai Bench in the case of MURUGAIAH VELAR Vs.
3
VELAMMAL AND OTHERS and seeks to dismiss the
petition.
4. I have heard the arguments of the learned
counsel for the petitioner, the learned counsel for
2
2025 SCC Online Delhi 3502
3
2017 SCC Online Mad 2821
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respondent No.1 and meticulously perused the material
available on record.
5. The point that arises for consideration in this
petition is:
“Whether the gratuity amount of the deceased
employee can be attached in the execution
proceedings?
6. The respondent No.1 filed a suit in
O.S.No.109/2016 against the deceased Babu for recovery
of amount. The said suit came to be decreed on
06.04.2018 and thereafter, the respondent No.1-decree
holder filed Ex.Case No.70/2019 against the petitioner,
respondent Nos.2 and 3 seeking to execute the judgment
and decree in O.S.No.109/2016. In the said execution
proceedings, the respondent No.1-decree holder sought
attachment and sale of movables of the judgment debtors,
arrest of the judgment debtors and attachment of death
fund and other benefits of the judgment debtors. The
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petitioner-judgment debtor No.1 filed objections opposing
the execution petition. The Executing Court, under the
impugned order, considering the rival submissions,
ordered attachment of gratuity amount of the deceased
Babu and further ordered that the decree holder is entitled
to release of Rs.3,00,000/-, by overruling the objection of
the petitioner.
7. To appreciate the point as to whether the
gratuity amount can be attached, it would be useful to
extract Sections 4(1) and 13 of the Payment of Gratuity
Act, 1972 (for short, ‘the Act’) which is extracted
hereinbelow:
“ 4(1) Gratuity shall be payable to an employee
on the termination of his employment after he has
rendered continuous service for not less than five
years,-
(a) on his superannuation, or
(b) on his retirement or resignation,
(c) on his death or disablement due to accident or
disease:
Provided that the completion of continuous
service of five years shall not be necessary where the
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termination of the employment of any employee is
due to death or disablement:
[Provided further that in case of death of the
employee, gratuity payable to him shall be paid to
his nominee or, if no nomination has been made, to
his heirs, and where any such nominees or heirs is
minor, the share of such minor, shall be deposited
with the Controlling Authority who shall invest the
same for the benefit of such minor in such bank or
other financial institution, as may be prescribed, until
such minor attains majority].
Explanation.- For the purposes of this section,
disablement means such disablement as
incapacitates an employee for the work which he was
capable of performing before the accident or disease
resulting in such disablement.
13. Protection of gratuity.- No gratuity payable
under this Act [and no gratuity payable to an
employee employed in any establishment, factory,
mine, oilfield, plantation, port, railway company or
shop exempted under Section 5 shall be liable to
attachment in execution of any decree or order of
any civil, revenue or criminal court.”
8. Section 4 of the Act provides for payment of
gratuity. The gratuity shall be payable to an employee on
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termination of his employment, on his superannuation, on
his retirement or resignation or on his death or
disablement due to accident or disease. Section 13 of the
Act makes it clear that no gratuity payable under the Act
shall be liable to be attached in the execution of the
decree or order of any civil, revenue or criminal Courts.
9. The Andhra Pradesh High Court in the case of
D.VIMALA Vs. CANARA BANK, METTUGUDA,
4
SECUNDERABAD , at paragraphs 5 and 6 held as under:
“5. In the decision of the Supreme Court
reported in Union of India v. J. C. Fund & Finance , it
was observed by their Lordships that the Provident
Fund amount, pensions and other compulsory
deposits which are payable to an employee will retain
their character until they reach the hands of such
employee even if he has already retired from
service. The earlier decisions of the Supreme Court
reported in Union of India v. Radhah Kissen was also
referred to by their Lordships in the above cited
decision reported in Union of India v. J. C. Fund &
Finance (supra) and it was observed that so long as
4
1997 (6) ALT 62
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the amount of provident fund dues, the nature of
such dues is not altered till they are actually paid to
the Government servant who is entitled to it on
retirement or otherwise; that the Government is a
trustee for such amounts due to the Government
employee even after his retirement. The learned
Counsel for the revision petitioner has also tried to
rely upon another decision of the Supreme Court
reported in Calcutta Dock Labour Board v. Sandhya
Mitra 1985 I CLR 229 in which the question that
arose for consideration is whether the gratuity
amount due to an employee is liable for attachment.
After referring to the relevant provisions of
the Payment of Gratuity Act, 1972 and also the
provisions of Section 60(1) (proviso) (g), C.P.C., it is
observed by their Lordships that Section 13 of the
Payment of Gratuity Act gives total immunity to
gratuity from attachment. In the case concerned in
that decision, the gratuity amount was payable to
workman employee under the Calcutta Dock Labour
Board and such amount was sought to be attached in
the execution proceedings taken against the widow
and son of the deceased employee after his death for
rearranging the amount due under a decree passed
against the employee. It is, therefore, clear from the
observations made by their Lordships in the above
cited decision of the Supreme Court that even in a
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case where the attachment of the gratuity amount is
sought in the execution proceedings launched against
the legal representatives of the deceased employee
to whom the gratuity amount was payable, such
gratuity amount is not liable for attachment. As
already stated above, these decisions of the Supreme
Court were evidently not brought to the notice of the
Kerala High Court when the matter was argued in the
above said matter relating to the decision reported in
Satyavathy v. Bhargavi (supra).
6. Apart from this, it is to be seen that Section
4(1) of the Payment of Gratuity Act provides that
gratuity shall be payable to an employee (a) on his
superannuation or (b) on his retirement or
resignation, or (c) on his death or disablement due to
accident or disease. It is clear from such provisions
that gratuity shall be payable to an employee directly
on his superannuation or on his retirement or
resignation under Clauses (a) or (b) of Section
4(1) and to his legal representatives in case of his
death as per Clause (c) of Section 4(1) of the
Payment of Gratuity Act. The second proviso
to Section 4(1) provides that in case of the death of
the employee, gratuity payable to him shall be paid
to his nominee or if no nomination has been made, to
his heirs. Section 13 of the Payment of Gratuity Act
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provides that no gratuity payable in this Act .... shall
be liable to attachment in execution of any decree or
order of any Court. In the present case, the gratuity
amount lying with the Deputy Controller of Stores,
South Central Railway, Secunderabad is payable
under the Payment of Gratuity Act to the deceased-
second Judgment - Debtor during his life time and it
became payable to his wife and other legal
representatives after his death in view of the
provisions of Section 4(1) of the Payment of Gratuity
Act which are already referred to above. Inasmuch as
the said gratuity amount is payable under
the Payment of Gratuity Act to the legal
representatives of the deceased-Judgment-Debtor
No. 2 after his death, such amount will not lose its
character as such gratuity amount is totally exempt
from attachment in view of the protection granted
under Section 13 of the Payment of Gratuity Act.
Therefore, in view of such circumstances, the
gratuity amount which became payable to the
present revision petitioner and the other legal
representatives of the deceased-Judgment-Debtor
No. 2 after his death and which was sought to be
attached in the present case is not liable for
attachment in view of the provisions of Section 60(1)
(proviso) (g), C.P.C. and also Section 4r/w. Section
13 of the Payment of Gratuity Act and the impugned
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orders of the lower Court cannot, therefore, be
sustained.”
10. This Court in the case of G.NARAYANA RAO
referred supra at paragraph 7 held as under:
“7. It is therefore dear that by virtue of Section
13 of the Act, the Gratuity amount payable to an
employee of an Industrial Concern, is exempt from
attachment in execution of any decree or order of
any Civil Court or Criminal Court. Section 14 thereof
further envisages that the provisions of the payment
of Gratuity Act, 1972 shall have overriding effect on
the provisions of any other enactment. In that view
of the legal position I find that the impugned order of
the Court below is not sustainable and it is liable to
be set aside.”
11. The Delhi High Court in the case of BUREAU
OF OUTREACH AND COMMUNICATIONS AND DD
M/O INFORMATION OF BROADCASTING referred
supra, at paragraph 18 referring to the decision of the
Madras High Court in the case of MURUGAIAH VELAR ,
held as under:
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“18. A similar issue arose before the learned
Single Judge of High Court of Madras in Murugaiah
Velar v. Velammal, 2017 SCC OnLine Mad 2821. The
relevant para of the judgment reads thus:—
“ 6. No doubt, as per the Code of Civil Procedure,
the gratuity amount allowed to the pensioners is
exempted from attachment. However, insofar as
this case is concerned, the respondents 1 to
3/defendants are claiming right over the gratuity
amount only in their capacity as the legal
representatives of the deceased borrower. In such
circumstances, it is found that when the
exemption provided to the gratuity amount would
be made applicable only to the deceased borrower
and the said exemption cannot be claimed by his
legal representatives as they inherit the gratuity
amount in their capacity as the legal
representatives of the deceased and in such
circumstances, the estate of the deceased lying in
the hands of the legal representatives are liable
for action pursuant to the decree passed in the
suit and in such view of the matter, it is found that
the respondents 1 to 3/defendants cannot claim
the benefit of the provision of Section 60(g) of
the Code of Civil Procedure as they cannot be
equated as pensioners entitled to receive the
gratuity amount as such. When it is found that
they would be entitled to get the gratuity amount
only in their capacity as the legal representatives
of the deceased borrower and so seen it is found
that the same would constitute only the estate of
the deceased in their hands and the position being
above, it is found that the respondents 1 to
3/defendants cannot seek the benefit of the
exemption provided to the deceased borrower
under Section 60(g) CPC
7. Be that as it may, a perusal of
Section 60(g) CPC, would go to show that the
gratuity amount allowed to the pensioners alone is
exempted from attachment and once the gratuity
amount is lying in the hands of the legal
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representatives of the pensioners, it would come
under the classification of the estate in the hands
of the legal representatives and therefore, the
legal representatives cannot seek the benefit of
the above said provision of law and therefore, it is
found that the Lower Court had erred in raising
the attachment passed in I.A. No. 443 of 2001.
The learned counsel for the respondents 1 to
3/defendants, in support of his contentions, placed
reliance upon the decision in (2001) 6 SCC
591 [Corakhpur University v. Dr. Shitla Prasad
Nagendra]. However, as rightly putforth by the
learned counsel for the revision petitioner, the said
decision is found to be not applicable to the facts
and circumstances of the case at hand.”
12. The Hon’ble Supreme Court in the case of
CALCUTTA DOC LABOUR BOARD AND ANOTHER Vs.
5
SMT.SANDHYA MITRA AND OTHERS has held at
paragraphs 3, 4, 5 and 6 as under:
“3. Mr Mukherjee appearing for the appellants
maintained that the view taken both by the Chief Judge
of the Small Cause Court as also the Division Bench of
the High Court is contrary to law and, therefore, cannot
be sustained.
4. Section 1(3) of the Payment of Gratuity Act (39 of
1972) (“Act” for short), provides that the Act shall
extend to ports. “Port” has been defined in Section 2(n)
of the Act. There can be no dispute that the Calcutta
5
AIR 1985 SC 996
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Port is covered by the Indian Ports Act, 1908. It is true
that under one of the three schemes framed by the
Calcutta Dock Labour Board gratuity was payable to
Md. Safiur Rehman, but such gratuity must be taken to
be covered by Section 4 of the Act, in the absence of
any notification contemplated under Section 5. Section
5 authorises the appropriate Government by
notification and subject to such conditions as may be
specified in that notification to exempt, inter alia, any
port to which the Act applies, from the operation of the
provisions of the Act, if in the opinion of the appropriate
Government the employees in the port are in receipt of
gratuity or pensionary benefit not less favourable than
the benefits conferred under the Act. Neither the Chief
Judge nor the High Court has found that there has been
a notification as contemplated under Section 5 of the
Act in this case. It had also not been contended at any
stage by the respondents that such a notification had
been made.
5. Reference may now be made to Sections 13 and 14
of the Act which are very relevant.
“13. Protection of gratuity.—No gratuity payable under
this Act shall be liable to attachment in execution of
any decree or order of any civil, revenue or criminal
court.
14. Act to override other enactments, etc.— The
provisions of this Act or any rule made thereunder shall
have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this
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Act or in any instrument or contract having effect by
virtue of any enactment other than this Act.”
6. We may point out that by Central Act No. 25 of
1984 Section 13 has been amended with effect from
July 1, 1984 and the amended section reads thus:
“No gratuity payable under this Act and no gratuity
payable to an employee employed in any
establishment, factory, mine, oilfield, plantation, port,
railway company or shop exempted under Section 5
shall be liable to attachment in execution of any decree
or order of any civil, revenue, or criminal court.”
In the absence of any notification within the meaning
of Section 5 of the Act the amendment is not relevant
for consideration. Section 14 has overriding effect and
Section 13 gives total immunity to gratuity from
attachment. The preamble of the Act clearly indicates
the legislative intention that the Act sought to provide a
scheme for payment of gratuity to all employees
engaged in, inter alia, ports and under this Act gratuity
was payable to workers like Md. Safiur Rehman. The
gratuity which was payable to him squarely came within
the purview of the Act and, therefore, became entitled
to immunity under Section 13 thereof.”
13. The mandate of Section 13 of the Act is very
clear that gratuity payable to an employee either on his
superannuation, on his retirement or resignation or on his
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death or disablement due to accident or disease, shall not
be liable to be attached in the execution of any decree or
order of any Civil Court, revenue or Criminal Court. The
Hon’ble Supreme Court, in the aforesaid decision, at
paragraph 6 referring to the preamble of the Act, held that
the legislative intent of the Act was to provide a scheme
for payment of gratuity to all the employees engaged in
different organisations referred in the Act.
14. Section 60 of the Code of Civil Procedure,
1908, is extracted hereinbelow:
“ 60. Property liable to attachment and sale in
execution of decree.—(1) The following property is
liable to attachment and sale in execution of a
decree, namely, lands, houses or other buildings,
goods, money, bank-notes, cheques, bills of
exchange, hundis, promissory notes, Government
securities, bonds or other securities for money,
debts, shares in a corporation and, save as
hereinafter mentioned, all other saleable property,
movable or immovable, belonging to the judgment-
debtor, or over which, or the profits of which, he has
a disposing power which he may exercise for his own
benefit, whether the same be held in the name of the
judgment-debtor or by another person in trust for
him or on his behalf:
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Provided that the following particulars shall not be
liable to such attachment or sale, namely:—
(a) the necessary wearing-apparel, cooking vessels,
beds and bedding of the judgment-debtor, his wife
and children, and such personal ornaments as, in
accordance with religious usage, cannot be parted
with by any woman;
(b) tools of artisans, and, where the judgment-
debtor is an agriculturist, his implements of
husbandry and such cattle and seed-grain as may, in
the opinion of the Court, be necessary to enable him
to earn his livelihood as such, and such portion of
agricultural produce or of any class of agricultural
produce as may have been declared to be free from
liability under the provisions of the next following
section;
(c) houses and other buildings (with the materials
and the sites thereof and the land immediately
appurtenant thereto and necessary for their
enjoyment) belonging to 1 [an agriculturist or a
labourer of a domestic servant] and occupied by him;
(d) books of account ;
(e) a mere right to sue for damages ;
(f) any right of personal service ;
(g) stipends and gratuities allowed to pensioners of
the Government 2 [or of a local authority or of any
other employer], or payable out of any service family
pension fund 3 notified in the Official Gazette by 4
[the Central Government or the State Government]
in this behalf, and political pensions; 5
[(h) the wages of labourers and domestic servants,
whether payable in money or in kind; 6 ] *
[(i) salary to the extent of 8 [the first 9 [ 10[one
thousand rupees]] and two third of the remainder]
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11[in execution of any decree other than a decree for
maintenance]:
[Provided that where any part of such portion of the
salary as is 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, after the attachment has
continued for a total period of twenty-four months,
be finally exempt from attachment in execution of
that deeree.]
[(ia) one-third of the salary in execution of any
decree for maintenance;]
[(j) the pay and allowances of persons to whom the
Air Force Act, 1950 (45 of 1950) or the Army Act,
1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957), applies;]
(k) all compulsory deposits and other sums in or
derived from any fund to which the Provident Funds
Act, 14[1925], (19 of 1925), for the time being
applies in so far as they are declared by the said Act
not to be liable to attachment;
[(ka) all deposits and other sums in or derived from
any fund to which the Public Provident Fund Act,
1968 (23 of 1968), for the time being applies, in so
far as they are declared by the said Act as not to be
liable to attachment;
(kb) all moneys payable under a policy of insurance
on the life of the judgment-debtor;
(kc) the interest of a lessee of a residential of
building to which the provisions of law for the time
being in force relating to control of rents and
accommodation apply;]
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[(1) any allowance forming part of the emoluments
of any 2 [servant of the 3 [Government]] or of any
servant of a railway company or local authority which
the 4 [appropri ate Government] may by notification
in the Official Gazette declare to be exempt from
attachment, and any subsistence grant or allowance
made to 5 [any such servant] while under
suspension;]
(m) an expectancy of succession by survivorship or
other merely contingent or possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by 6 [any Indian law] to
be exempt from liability to attachment or sale in
execution of a decree; and
(p) where the judgment-debtor is a person liable for
the payment of land-revenue; any movable property
which, under any law for the time being applicable to
him, is exempt from sale for the recovery of an
arrear of such revenue.
[(pp) where the judgement-debtor is a servant of the
state Government who has insured his life under the
rules in force relating to the official Branch of
Karnataka Government Life Insurance Department :-
(1) In the case of insurance effected prior to the
ninth day of May,1911, the whole of the bonus
payable or paid thereunder to such servant, or in the
event of his death to his nominee or other person or
persons entitled to such bonus under the said rules,
and
(2) In the case of insurance effected on or after the
ninth day of May,1911 and such insurance is
compulsory, then the bonus in respect of the
compulsory premia payable or paid to such servant,
or in the event of his death to his nominee or other
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person or persons entitled to such bonus under the
said rules.]
[Explanation I. —The moneys payable in relation to
the matters mentioned in clauses (g), (h), (i), (ia),
(j), (l) and (o) are exempt from attachment or sale,
whether before or after they are actually payable,
and, in the case of salary, the attachable portion
thereof is liable to attachment, whether before or
after it is actually payable.]
[Explanation II. —In clauses (i) and (ia)], “salary”
means the total monthly emoluments, excluding any
allowance declared exempt from attachment under
the provisions of clause (1), derived by a person
from his employment whether on duty or on leave.]
[Explanation [III]—In clause (1) “appropriate
Government” means— (i) as respects any 12[person]
in the service of the Central Government, or any
servant of 13[a Railway Administration] or of a
cantonment authority or of the port authority of a
major port, the Central Government; 14 (iii) *
as respects any other 2 [servant of the 3
[Government]] or a servant of any other 15 local *
authority, the State Government.]
[Explanation IV—For the purposes of this proviso,
“wages” includes bonus, and “labourer” includes a
skilled unskilled or semi-skilled labourer.
Explanation V—For the purposes of this proviso, the
expression “agriculturist” means a person who
cultivates land personally and who depends for his
livelihood mainly on the income from agricultural
land, whether as owner, tenant, partner or
agricultural labourer.
Explanation VI—For the purposes of Explanation V an
agriculturist shall be deemed to cultivate land
personally, if he cultivates land—
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(a) by his own labour, or
(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in
cash or in kind (not being as a share of the produce),
or both.]
[(IA) Notwithstanding anything contained in any
other law for the time being in force, an agreement
by which a person agrees to waive the benefit of any
exemption under this section shall be void.]
(2) Nothing in this section shall be deemed 1 to *
exempt houses and other buildings (with the
materials and the sites thereof and the lands
immediately appurtenant thereto and necessary for
their enjoyment) from attachment or sale in
execution of decrees for rent of any such house,
building, site or land 2”.
[emphasis supplied]
15. The aforesaid Section indicates that the
property is liable for attachment and sale in a execution
decree and it carves an exception in the said Section that
the following properties shall not be liable to be attached
or sold:
(a) to (f) xxxx,
(g) stipends and gratuities allowed to pensioners of
the Government 2 [or of a local authority or of any
other employer], or payable out of any service family
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pension fund 3 notified in the Official Gazette by 4
[the Central Government or the State Government]
in this behalf, and political pensions.
(h) to (p) xxxx
16. The aforesaid provision of law makes it clear
that the gratuity of a Government servant cannot be
attached. It is required to be noticed that the Madras High
Court in the case of MURUGAIAH VELAR referred supra,
at paragraph 7 observed that the gratuity amount allowed
to the pensioner alone is exempted from the attachment
and once the gratuity amount is lying in the hands of the
legal representative of the pensioner, it would come under
the classification of the estate under the hands of the legal
representatives and therefore, the legal representatives
cannot seek the benefit of the above said provision of law.
In the case on hand, the decree holder has sought to
attach the gratuity amount of the deceased Babu who was
an employee and the said amount is with the employer.
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Hence, there cannot be any attachment of the gratuity
amount. In my considered view, merely because the legal
representatives of the employee are entitled to receive the
gratuity amount of the deceased employee, it would not
become the estate of the family. It is also required to be
noticed that if the gratuity amount payable to the
deceased employee is paid by his employer, either to the
employee in the cases where the employee has retired on
attaining superannuation or on his resignation or to the
legal heirs of the deceased employee on the death of the
employee cannot be attached as there is a clear bar under
Section 13 of the Act as well as under proviso (g) to
Section 60(1) of the CPC. It would be appropriate to
observe that if the gratuity amount “payable” to the
employee as referred under Section 4 of the Act, cannot
be attached, however, if the gratuity amount is withdrawn
by the legal representatives of the deceased employee,
then the said amount would become the estate of the
deceased but not otherwise. It is further to be noticed
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that Section 13 of the Act provides total immunity to the
gratuity amount from attachment.
17. For the preceding analysis, I am of the view
that the Executing Court has committed a grave error in
ordering the attachment of gratuity amount of the
deceased Babu. Accordingly, the point is answered in
affirmative. Hence, I proceed to pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned order dated 03.06.2021 passed in
Ex. Case No.70/2019 by the Principal Civil Judge
& JMFC, Bhadravathi, is set aside.
No order as to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 1 Sl No.: 2