Defreeze application
Shehbaz Naqvi
(Querist) 14 March 2020
This query is : Resolved
FOLLOWING IS THE COURT ORDER, I WANT TO CLARIFY WHAT AMOUNT I WILL GET IF MY MONTHLY SALARY IS 44000/PM. AND IF WITHDRAWAL IS POSSIBLE FOR THREE MONTHS ONLY I.E. JULY, AUGUST & SEPTEMBER OR AFTER THIS ALSO
IN THE COURT OF SH. R. L. MEENA, ADJ02 & WAKF TRIBUNAL
(NEW DELHI DISTT.), PATIALA HOUSE COURTS, NEW DELHI.
EX No.707/18
Ms. Anshu
D/o Sh. Gyan Prakash
R/o WZ68, Menakshi Garden,
New Delhi.
….......DH/ Nonapplicant
Versus
Sh. Shehbaz Hussain
S/o Sh. Jawad Hussain
R/o E278, Second Floor,
Near Jaswant Apartment,
Okhla Village, New Delhi.
….......JD/ Applicant
ORDER
(13.09.2019)
1. By this order, I shall dispose of the application of applicant/ JD
U/Sec.151 CPC for defreeze the bank account of the applicant/JD bearing
no.443244137 with Indian Bank, Jamia Milia Islamia Branch, Delhi.
2. Briefly stated, DH filed a suit for recovery U/O.XXXVII CPC
against the applicant/JD, which was decreed for a sum of Rs.45,00,000/ with
pendentlite and future interest @6% per annum vide order dated 04.05.2018
passed by Ld. Predecessor of this court after dismissing of leave to defend
application of the applicant/JD.
Ex. No.707/18 Page No.1 of 6
Anshu Vs. Shehbaz
3. It is stated by the JD in the present application that he was in
urgent need of home loan. Accordingly, he was introduced by a person namely
Satish to Mr. Piyush i.e. husband of DH and Mr. Ankur i.e. son of DH, who are
stated to be practicing lawyers. It is further alleged that Mr. Piyush had assured
JD that loan would be provided to him after execution of necessary documents.
On the said assurance, husband of the DH had obtained signature of the JD on
blank papers. It is further stated that DH, after getting the signature of
applicant/JD on the said blank documents, did not provide any loan amount. It
is further alleged that all the documents mentioned in the plaint are forged and
fabricated. It is further alleged that DH, with the collusion of her husband, son
and other persons engaged a counsel, who pretended to be counsel for the JD
and made a compromise on behalf of the JD. It is also alleged that present
decree has been obtained by fraud, therefore, several complaints have been
lodged against the DH, her husband and son in the Police Station and in the
Bar Council of India. It is further stated that JD is having the salary account
bearing no. 443244137 with Indian Bank, Jamia Milia Islamia Branch, in which,
his salary is credited every month. It is further stated that JD is only bread
earner for his family and he has to take care of his wife, two children, who are
studying in School and Senior Citizen parents. It is further stated that on
22.02.2019, this court issued the warrant of attachment against the JD's SBI
bank account, but the above mentioned Indian bank official freezed the bank
account of the JD, therefore, JD is unable to withdraw his salary for his daily
Ex. No.707/18 Page No.2 of 6
Anshu Vs. Shehbaz
household needs.
4. It is prayed by applicant/ JD to defreeze the salary account of
the JD bearing account no. 443244137 with Indian Bank, Jamia Milia Islamia
Branch, in the interest of justice. It is also prayed to give directions to the
Indian Bank, not to release any amount in favour of the DH from the said salary
account till the disposal of the application.
5. I have heard the arguments advanced by Sh. Kunal Kukreja,
counsel for applicant/ JD and Sh. Piyush, counsel for DH and perused record
carefully.
6. During the course of the arguments, it is submitted by counsel for
applicant/ JD that DH has dishonestly obtained the decree of Rs.45,00,000/
and same has been challenged by a separate application U/O.37 R.4 CPC. It is
further submitted by counsel for applicant that the account which attached by
this court, is a salary account of the applicant wherein the salary of the
applicant is credited in every month. It is further submitted that applicant is
facing situation like starvation after attachment of the said account as he
cannot withdraw any amount from the said account. It is prayed that applicant
may be allowed to withdraw some amount in order to meet the necessary
expenses of his family.
7. On the contra, counsel for DH has opposed the said argument
stating that if applicant is allowed to withdraw the amount then DH may not be
able to execute or satisfy his decree. It is prayed that the present application is
Ex. No.707/18 Page No.3 of 6
Anshu Vs. Shehbaz
liable to be dismissed.
8. After having gone through the submissions of the counsels for
both the parties and perusal of the record, I find that the applicant/ JD has been
working as Assistant Professor in Jamia Milia Islamia University, New Delhi.
Further, the account which attached by this court, is a salary account of the
applicant. In the said situation, now one sole question arises in the present
application, as to whether the entire salary which is being sent to the
applicant's account by the employer of the applicant, can be attached?
9. In order to deal with the said question, it is relevant to refer the
appropriate provisions of law:
(i) Order 21 Rule 48 CPC governs the procedure for attachment of salary
of Government Servants or Railway or Local Authority.
(ii) Sec. 60(i) CPC provides for limit of exemption from attachment.
(iii) As per Sec. 60(i), the following shall not be liable to attachment.
(i) Salary to the extent of the first (one Thousand Rupees) and two thirds
of the remainder.(in execution of any other than a decree for
maintenance) It may be mentioned that under the Amendment Act
46/1999, the words "Four hundred" is now substituted as "Rupees One
thousand".
10. By the reading of Sec. 60(i) and the Explanations thereon, the
following propositions could be enumerated:
(1) (a) Salary not exceeding Rs.1000 is wholly exempt from attachment (in
Ex. No.707/18 Page No.4 of 6
Anshu Vs. Shehbaz
execution of a decree other than a maintenancedecree). If it exceeds Rs. 1000
(after Amendment Act 46/99) the nonattachable portion is Rs. 1000 and twothird the remainder;
(b) two thirds of the salary is liable to attachment in execution of a
decree for maintenance;
(2) Exemption from repeated attachments is also applicable to private
salaries as is applicable to salaries of servants of Govt. etc (vide Proviso to
Cl.(i).
(3) Private salaries can also be attached before they are actually payable
like salaries of servants of Govt &c (vide Expln.I).
(4) Salary means the total monthly emoluments whether on duty or on
leave excluding any allowance that may be declared under cl(1) (Expln 2).
(5) As regards allowances, only notified allowances of servants of Govt.
etc. are exempted, (vide cl(1).
11. In view of said provision of law particularly Sec.60(i) of CPC, it is
apparent that Sec.60(i) is a mandatory. There can be no attachment in
contravention of the limit of Sec.60(i) CPC. It is further apparent that salary not
exceeding Rs.1,000/ is wholly exempt from the attachment (in execution of
decree other than a maintenance decree). If it exceeds Rs.1,000/ (after
amendment act 46/99) the nonattachable portion is Rs.1,000/ and 2/3rd the
remainder. Accordingly, applicant is entitled to withdraw the remaining portion
of salary after the said deduction mentioned in Sec.60(i) of the CPC.
Ex. No.707/18 Page No.5 of 6
Anshu Vs. Shehbaz
Accordingly, Bank Manager of Indian Bank, Jamia Milia Islamia branch is
directed to release the salary of the applicant from his account after the
aforesaid deductions particularly mentioned in Sec.60(i) of CPC from the month
of July, i.e. date of filing of present application 10.07.2019 till the month of
September, 2019.
12. It is further ordered to the Branch Manager of the said bank that
whatever amount is left after the deduction of the said portion of salary, be sent
to this court in the form of FDR. Warrants of Attachment of salary of applicant
be issued to the department of JD/ applicant w.e.f. Month of October, 2019, in
order to satisfy the decree. It is made clear that the amount to be sent in the
form of FDR to this court by the bank and the salary by way of attachment
w.e.f. month of October, 2019 will not be released to the DH till the disposal of
the pending application i.e. U/Sec.47 r.w. O.21 R.29, 90, 100, 101 of the CPC
and application U/O.37 R.4 CPC.
13. With these observations, the present application stands disposed
of.
(R.L. Meena)
ADJ02 & Waqf Tribunal
NDD/PHC/ND/13.09.2019
Ex. No.707/18 Page No.6 of 6
Anshu Vs. Shehbaz
Raj Kumar Makkad
(Expert) 14 March 2020
You have already engaged able-bodied and mindful competent lawyer. Why don't you ask this question from him who has even charged fee from you???
Rajendra K Goyal
(Expert) 15 March 2020
Full case file need to be referred, please discuss with your lawyer.
T. Kalaiselvan, Advocate
(Expert) 15 March 2020
The judgment is clear that besides Rs. 1000/- an amount of t the extent of 1/3rd of your salary is exempted and rest is available for attachment towards satisfaction of the decree amount.
