RADHEY SHYAM GUPTA versus PUNJAB NATIONAL BANK & ANR.

Citation: [2008] 15 S.C.R. 241 · Decided: 04-11-2008 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Appeal(s) allowed

Judgment (excerpt)

242 
SUPREME COURT REPORTS 
[2008] 15 S.C.R. 
A judgment by the High Court as to the steps taken by the Bank 
for recovery of the vehicle for auction sale in order to recover 
decretal amount -- Hence, the irnpugned order cannot be 
sustained and s!Jt aside - Order of the Executing Court 
restored - Executing Court - Power of, in issuing order for 
B attachment of F.D.Rs. of pension and gratuity. 
. Code of Civil Procedure, 1908 - S. 115 - Power of the 
High Court in altering decree of the trial Court, in exercise of 
revisional jurisdiction '""" Discussed. 
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Respondent No.2 took a loan of Rs.83, 0001- from 
respondent No.1, Bank for purchase of a motor vehicle. 
Appellant stood guarantee for the loanee. Since loanee 
could not repay the loan, Bank filed a suit for recovery 
of the loan againsUhe loanee and the guarantor. The suit 
D was decreed by the trial Court 'for a sum of Rs.1, 10, 3601 
-with interest with a direction to recover the said amount 
by auction sale of the hypothecated vehicle and the 
amount, if ariy, which rema~ned to be paid could be 
recovered from the other properties of the loanee and the 
E guarantor. As tbe vehicle w~s not traceable, the Bank 
sought for order of attachment of Fixed Deposits of the 
guarantor allegedly made from the amounts received by 
him by way of pension and gratuity. The Executing Court 
ordered attachment of the Fixed Deposit Receipts. 
F Aggrieved by the order of. the Executing Court, the 
guarantor moved the High Court. The High Court directed 
the Executing Court to pass appropriate orders. The 
Executing Court directed release of F .D.Rs. as the amount 
in the F.D.Rs. could not be attached under proviso (g) to 
s.60(1) ~f C.P .C. It further directed that the vehicle was to 
G be auctioned first. Aggriev~d, the Bank filed a revision 
petition. The High Court directed the guarantor to deposit 
a sum of Rs.50, 000/- forthwith and also to furnish details 
of the movable and immova~le properties of the Principal 
H debtor. The guarantor mov~d an application praying for 
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RADHEY SHYAM GUPTA v. PUNJAB NATIONAL BANK & 243 
ANR. 
adjusting the sum of Rs.SO, 000/- out of the F.D.Rs. and 
balance, if any, could be returned to him. The High Court 
disposed of the revision petition, inter alia, directing that 
the amount of Rs.SO, 000/- out of the guarantor's Fixed 
Deposit Receipts could be adjusted in the first instance. 
It also directed that on the vehicle being furnished along 
with solvent security before the Executing Court, the 
remaining amount under the Fixed Deposit Receipt 
would be released to the guarantor. Aggrieved, the 
guarantor filed a Review Petition, which was dismissed 
in /imine by the High Court. Hence the present appeals• 
Appellant, int~r alia, contended that it was clearly the 
intention of the trial Court that the sale proceeds of the 
hypothecated vehicle should first be utilized for 
realization of the decretal amount before touching the 
other properties of the defendants for recovery of the said 
dues. 
On behalf of the Bank, it was submitted that despite 
several attempts having been made to locate the vehicle; 
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the same could not be traced and the Bank, therefore, had. 
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no alternative but to proceed against the appellant in his 
capacity as the guarantor for recovery of the dues; that· 
the provision of proviso (g) to Section 60(1) C.P.C. would· 
apply only to the source of the amounts received by way 
of retiral benefit, such as pension and gratuity, but not to, F 
payments made in respect thereof; and that once the 
monies covered by the provisions of the proviso to · 
Section 60(1) of the Code had been paid to the concerned · 
employee, they no longer retained their original character , 
and were, therefore, amenable to attachment. 
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Allowing the appeals, the Court 
HELD: 1.1. The order impugned in the revision 
petition before the High Court did not attract the bar of · 
the proviso to sub-section (1) of Section 11 S of the Civil 
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244 
SUPREME COURT REPORTS 
:[2008] 15 S.C.R 
A Procedure Code as it sought to finally decide the manner 
in·which the decree passed in the Suit in question by the 
trial Court, was to be satisfied. However, this Court is also 
of the view that having regard to proviso (g) to. Section 
60 (1) of the Civil Procedure Code, the High Court 
B committed a jurisdictional error. in directing that a portion 
of the decretal amount be satisfied from the fixed deposit 
receipts

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