ORDER
R. Banumathi, J.
1. This Revision is directed against the Order of I Additional District Munsif, Dindigul in E.P. No. 578/1998 in ARC. No. 18/1997 (dated 08.11.2000) ordering attachment of the salary of the Revision Petitioner of Rs. 2,000/=.
2. This Revision raises question of frequent occurrence before the Executing Courts as to the extent of attachment of salary in execution of decree.
3. We may refer to brief relevant facts most of which are uncontroverted.
A.R.C. No. 18/1997:- First Respondent / Shri Ram Chit Funds is a Chit Fund Company. Second Respondent / D1 joined a Chit Group value of Rs. 30,000/=. Instalments of Rs. 500/= per month payable for 60 months. The 2nd Respondent prized the chit on 19.11.1993. The bid amount was Rs. 29,000/=. Prize amount paid was Rs. 21,000/=. Revision Petitioner and Respondents 3 and 4 stood as Guarantors.
Principal Debtor / Second Respondent / D1 defaulted in payment. After statutory notice dated 22.07.1997, A.R.C.No.18/1997 was filed by the Chit Fund. Award was passed on 26.09.1997 for Rs. 16,000/= with interest at 12% from 01.06.1998 with costs.
E.P. No. 266/1998 and E.P. No. 578/1998:- E.P. No. 266/1998 was filed for arrest of the Second Respondent / Principal Debtor, which was dismissed on 20.08.1998. Thereafter, E.P.No.578/1998 was filed for recovery of Rs. 18,167.25 by attachment of salary of the Revision petitioner. Revision Petitioner is working as 'Fitter' in the Office of Government Automobile Workshop, Dindigul. He is drawing salary of Rs. 6,400/=. His salary was ordered to be attached to the extent of Rs. 2,000/= (after deducting non-attachable salary). Attachment of Rs. 2,000/= per month was ordered on 08.11.2000. As on the date of Execution Petition, amount due was Rs. 18,806.25 with further interest.
4. Aggrieved over the order of attachment of his salary, Revision Petitioner / Guarantor has preferred this Revision.
5. Denying the Petitioner's liability to pay the amount, on behalf of Revision Petitioner, it is contended that R1 / Plaintiff ought to have proceeded only against the Principal Debtor, who had defaulted in payment of chit instalments, instead of proceeding to attach the Petitioner's salary. Pointing out that the Revision Petitioner is working as 'Fitter' in Government Automobile Workshop, which involves manual labour work, and that the amount earned by him is only 'Wages', which is exempt from attachment under sec. 60(h) CPC, the order of attachment is seriously assailed that it contravenes Sec. 60(i) CPC - attaching the salary beyond the permissible limit.
6. Countering the arguments of the Revision Petitioner, the counsel for the 1st Respondent / Plaintiff submitted that under Sec. 128 of the Contract Act, the liability of the Surety is co-extensive with the Principal Debtor. It is further submitted that when security is taken for the purpose of ensuring payment of money, the Revision Petitioner cannot urge to defer the execution in this regard. Reliance is placed upon : [1969]1SCR620 . It is further submitted that when the Revision Petitioner is drawing salary of Rs. 6,400/=, there is no contravention of provision of Sec. 60(i) CPC in ordering attachment of Rs. 2,000/=. Revision Petitioner working as Fitter cannot be construed as the person employed in Manual Labour to categorise him as the Labourer to attract the exemption of Section 60(h).
7. Upon consideration of rival submissions and available materials, the following points, which are of frequent occurrence before the Executing courts, arise for consideration in this Revision.
(i) Under Sec. 128 of the Contract Act when the liability of the Surety is co-extensive with the Principal Debtor, can the Revision Petitioner resist his liability to pay the amount insisting to defer the execution ?
(ii) Whether the Revision Petitioner is right in contending that the salary drawn by him is only 'Wages' which is exempt from attachment under Sec. 60(h) CPC ?
(iii) Whether the order of attachment of Rs. 2,000/= from the salary of the Revision Petitioner is within the permissible limits of Sec. 60(i) CPC.
8. Point No.1: Admittedly, Petitioner stood as Guarantor for chit amount prized by the 2nd Respondent. Revision Petitioner is Surety No.2 along with Respondents 3 and 4. That the Revision Petitioner and Respondents 3 and 4 stood as Guarantors is clear from Surety/Security Proposal Form maintained by 1st respondent as per Rules. At that time, while the Revision Petitioner and Respondents 3 and 4 stood as Guarantors, they also produced their Salary Certificates.
9. As the Surety for the prized amount, Revision petitioner and other Guarantors agreed to pay the entire balance amount in case of default. In the Surety/Security Proposal Form, the guarantors have undertaken to pay the entire balance amount as under:-
'I further agree that in case of default by the prized bidder I shall pay the entire balance amount due to M/s. Shriram Chits & Investments Private Ltd., Madras, on demand with interest, legal and incidental charges incurred by the Company in this regard or any other charges as agreed between the company and the prized Bidder. In case of default, the company shall be entitled to take legal action against me for recovery of their dues'.
Having so undertaken to pay the amount in case of default by the prized debtor, it is his duty to pay the decreetal amount; or otherwise it would become meaningless to obtain the security from the Surety. The contention of the Revision petitioner to proceed against the Principal Borrower in the first instance has no force.
10. Elaborately considering the nature and extent of Surety's liability that it is co-extensive with the Principal Debtor, in Bank of Bihar ..vs.. Damodar Prasad : [1969]1SCR620 , the Supreme Court held thus:-
'Under Section 128, save as provided in the contract, the liability of the surety is co-extensive with that of the principal debtor. The surety thus becomes liable to pay the entire amount. His liability is immediate. It is not deferred until the creditor exhausts his remedies against the principal debtor. In the absence of some special equity the surety has no right to restrain an action against him by the creditor on the ground that the principal is solvent or that the creditor may have relief against principal in some other proceedings. Likewise where the creditor has obtained a decree against the surety and the principal, the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal'. (Underlining added)
11. Holding that it is the duty of the Surety to pay the decretal amount, the Supreme Court further held as under:
'It was the duty of the surety to pay the decretal amount. On such payment he would be subrogated to the rights of the creditor under Section 140. The security would become useless if rights against the surety could be so easily cut down. The direction in the decree could not be justified under O.20 R.11 (1). Assuming that apart from Order 20, Rule 11(1) the Court had the inherent power under Section 151 CPC to direct postponement of execution of the decree against the surety, the ends of justice did not require such postponement'.
In the light of the above, the contention of the Revision Petitioner that the execution against him to be postponed cannot be sustained.
12. In special cases, for sufficient reasons, the Court may direct postponing the payment of the decretal amount; but for issuance of that direction, there has to be sufficient and reasonable grounds. No sufficient and reasonable grounds are made out by the Revision petitioner for issuance of such direction to postpone the payment of the decretal amount against the Guarantors. The contention of the Revision Petitioner insisting to defer the execution against him has no substance and this point is answered accordingly.
13. Points 2 and 3:- We are now concerned with the following main two fold defence advanced by the Revision petitioner;
(i) that Revision Petitioner is working as Fitter in Government Automobile Workshop and the remuneration earned by him is only 'Wages' of Labourer within the meaning of Section 60(h) CPC and is exempt from attachment;
(ii)Revision Petitioner is getting total emoluments of Rs.1,224/= and from October 2000 he is only getting Rs. 385/= per month.
In spite of the Court being informed by the Garnishee / Employer of the Petitioner, in violation of Sec. 60(i) CPC,Executing Court has ordered attachment of salary of Revision Petitioner to the extent of Rs. 2,000/=. Since the Revision petitioner is getting only total emoluments of Rs. 1,224/=, it would not be permissible to attach Rs. 2,000/= from Petitioner's salary.
14. The merits of the two-fold defence advanced is to be considered in the light of Sec. 60 CPC. Proviso to Sec. 60 CPC refers to the particulars, which shall not be liable to attachment or sale. Sec. 60(h) exempts:-
'Wages of labourers and domestic servants whether payable in money or in kind'.
This clause has now been made applicable only to wages of labourers and domestic servants. Where the doing of the personal manual labour by the jobber is a term of his employment he is labourer and the remuneration earned by him, is wages of a labourer within S. 60(h). 'Wages' is used in the same sense as 'Salary' and implies total monthly emoluments. 'Labourer' includes a skilled, unskilled or semi-skilled labourer and 'wages' includes bonus (vide Expln.4). Weaver in a textile mill is a labourer. Wages are wholly exempt from attachment whatever the amount may be.
15. Whether a person is a labourer and doing personal manual and whether he can get the benefit of Sec. 60(h) is to be ascertained as a question of fact in each case considering the nature of work. While the Revision Petitioner offered to stand as Surety for the 2nd Respondent, Revision Petitioner has produced the Salary Certificate issued by the Office of Automobile Engineer, Government Automobile Workshop, Dindigul. This Salary Certificate is captioned as 'N.G.G.O.Certificate', wherein the Revision petitioner is termed as 'a Non-Gazetted Government Officer'. The Certificate issued by the Automobile Engineer certifying that the Revision Petitioner is a Non-Gazetted Government Officer reads thus:-
'Certified that Thiru V.THANGARASU is a Non-Gazetted Govt.Officer getting a salary of Rs.2134/= (Rupees Two thousand one hundred and thirty four only) and employed as Fitter in the Office of the Automobile Engineer, Govt.Automobile Workshop, Dindigul-2'.
Revision Petitioner is thus certified to be a Non-Gazetted Government Officer. While so, the contention of Revision Petitioner that he is doing personal manual labour is not established. His contention that he is employed as Fitter and remuneration earned by him is only 'Wages' of Labourer exempt from Sec. 60(h) is unsustainable.
16. It may be noted that the Revision Petitioner has not raised this point that he is doing only manual work at the early stage either before the lower court or in the grounds of Revision. The contention now advanced that the remuneration earned by him is only 'wages' hit by Section 60(h) is only time serving.
17. Order 21 Rule 48 CPC governs the procedure for attachment of salary of Government Servants or Railway or Local Authority. Sec. 60(i) CPC provides for limit of exemption from attachment. 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'.
18. 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 execution of a decree other than a maintenance-decree). If it exceeds Rs. 1000 (after Amendment Act 46/99) the non-attachable portion is Rs. 1000 and two-third 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).
19. Sec. 60(i) is mandatory. There can be no attachment in contravention of the limits of Sec. 60(i). Let us consider in ordering attachment of Rs. 2,000/= per month from the salary of the Revision petitioner, whether the Executing Court has contravened clause (i) of Section 60 CPC. Revision Petitioner is said to be drawing Rs. 6,400/=. After initial deduction of Rs. 400/= and 2/3rd of the remainder, the remaining of Rs. 2000/= is ordered to be attached. In fact, even in the Petition, the initial amount of Rs. 400/= and 2/3rd of the remainder is sought to be excluded as could be seen from the salary particulars furnished in the Schedule of the Petition.
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Thus, the order of attachment (of Rs. 2000/-) excluding the first Rupees Four hundred and 2/3rd of the remainder is well within the limits of Sec. 60(i). There is no contravention of clause(i) as contended by the Revision Petitioner.
20. According to the Revision Petitioner, he is getting only total emoluments of Rs. 1224/= and that it is not possible to attach Rs. 2000/=. As per the Salary Certificate in December 1993, Revision Petitioner was said to be drawing Rs. 2014/= as under:
Total Rs. 2134.00
Deduction Rs. 120.00
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Total 2014.00
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The Salary Certificate relates to December 1993. It is the matter of common knowledge that after implementation of V Pay Commission, salary of the Government Servants increased two fold - three fold. On the basis of the Salary Certificate for December 1993, Revision Petitioner cannot claim to be drawing only Rs. 1224/=. His claim that he is drawing only Rs. 385/= per month from October 2000 is unsupported by any material.
21. Even if the Revision Petitioner has availed any loan resulting in huge deductions, the Revision Petitioner cannot avoid the order of attachment of Rs. 2,000/=. 'Salary' means the gross salary, ie the total monthly emoluments including any sum which may be required for payment of taxes or payments or repayments to Provident Fund even though these may be recovered by deduction from salary'. Salary cannot be restricted to the emoluments payable after deductions. Salary must be construed in the light of definition in Explanation II, which reads thus:-
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(l), derived by a person from his employment whether on duty or on leave'.
22. Revision Petitioner has not proved his contemporaneous salary. According to the 1st Respondent, Revision Petitioner is drawing salary of Rs. 6400/= per month. When his salary is Rs. 6400/=, the Executing Court / learned District Munsif was right in ordering attachment of Rs. 2,000/= from the salary. The Revision Petitioner cannot successfully claim exemption from liability urging to proceed against the Principal Debtor nor can he claim exemption under Sec. 60(h) CPC.
23. There is no contravention of the limit of exemption under Sec. 60(i). The contentions urged by the Revision Petitioner are untenable and cannot be sustained. The order of attachment of Rs. 2,000/= from the salary of the Revision Petitioner does not suffer from any error or material irregularity warranting interference. This Revision has no merits and is bound to fail.
24. Therefore, the Order of the learned Additional District Munsif, Dindigul in E.P. No. 578/1998 in ARC. No. 18/1997 (dated 08.11.2000) is confirmed and this Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs.