Holding

The High Court erred in altering the trial court decree and directing attachment of the guarantor's retirement‑benefit fixed deposits, which are protected by proviso (g) to Section 60(1) CPC; the executing court's order is restored.

Summary

The appellant, a guarantor, challenged the attachment of his fixed deposit receipts, which were created from his pension and gratuity, by the executing court in a suit filed by the bank to recover a loan. The trial court had decreed that the bank could recover the debt by first auctioning the hypothecated vehicle and, if any balance remained, by attaching other properties of the debtor and guarantor. The High Court, in revision, directed that Rs.50,000 be adjusted from the guarantor's fixed deposits and placed the onus on him to produce the vehicle for auction, effectively altering the decree. The Supreme Court held that such alteration violated proviso (g) to Section 60(1) of the Code of Civil Procedure, which protects retirement benefit amounts from attachment, and that the High Court exceeded its revisional jurisdiction. Consequently, the order of the High Court was set aside and the executing court's order restored, allowing the guarantor's fixed deposits to be released.

Issues considered

The High Court's power to alter a trial court decree in a revision proceeding, particularly regarding the mode of satisfaction of the decretal amount.
Whether fixed deposits created from pension and gratuity are exempt from attachment under proviso (g) to Section 60(1) of the CPC.
Whether the revision petition filed by the bank was maintainable under Section 115 of the CPC.
Whether the bank must first realize the decree amount by auctioning the hypothecated vehicle before proceeding against the guarantor's assets.

Legislation cited

Code of Civil Procedure, 1908s. 115, s. 60(1)

Subjects

CPCSection 60(1) proviso gattachment of pensionguarantorexecution of decreerevision jurisdictionfixed depositretirement benefitsauction of hypothecated vehiclebank loan recovery

Judgment

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. , •
C 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
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
A

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 8
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• c
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 D
;.., dues.
On behalf of the Bank, it was submitted that despite
several attempts having been made to locate the vehicle;
the same could not be traced and the Bank, therefore, had. E
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.
'G
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 H
244 SUPREME COURT REPORTS :[2008] 15 S.C.R

y '
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 of the appellant held by the Bank and in placing.
the onus on the· appellant to produce the. vehicle iri
question for being auctioned for recovery of the decretal
c dues. In other words, the High Court erred in altering the
decree of the Trial Court in its revisional jurisdiction,
particularly when the pension and gratuity of the
appellant, which had been converted info Fixed Deposits,
could not be attached under the, provisions of the Code
of Civil Procedure. [Para 24] [224-G-H; 225-A-B]
0
Calcutta Dock Labour Board and Anr. v. Smt. Sandhya
Mitra and Ors., [1985j 2 sec 1: Union of India v. Wing
Commander R. R. Hingorani, (1987) 1 SCC 551; Gorakhpur
University and Ors. v. Dr. Shit/a Prasad Nagendera and Ors.,
E [2001] 6 sec 591 and Union of India v. Jyoti Chit Fund and
Finance and Ors., [1976] 3 sec 607, relied on.

1.2. The High Court could not have gone behind the
decree in the execution procee~ings and the alteration
F in the manner of recove..Y ·of the decretal amount was
. erroneous and cannot be sustained. Even after the retiral
benefits,such as pension and gratuity, had been received
by the appellant, they· did not lose their character and
continued to be covered by proviso (g) to Section 6·0(1)
G of the Code. [Para 25) [225-D-E]
1~3. The High Court, erroneously proceeded on the
basis that a concession had been made by the appellant
that he was willing to have the decretal amount adjusted
partly from his fixed deposits, which represented his
H retiral benefits and that he had also volunteered to
RADHEY SHYAM GUPTA v. PUNJAB NATIONAL BANK & 24$
ANR.

produce the vehicle before the Bank so that the same A
could be sold to recover the major portion of the dues.
Further-more, although the Bank was entitled to proceed!
both against the principal-debtor and the guarantor for
recovery of its dues, the mode of recovery was1
prescribed by the Trial Court, which clearly indicates that 8
the Bank should at first recover whatever amount it can ,
from .the sale of the vehicle. The right of the Bank to
proceed against either the principal-debtor or the
guarantor stood restricted by the directions of the Trial '
Court. Except for recording that the vehicle was not c
traceable, nothing is recorded in the impugned judgment '
of the High Court as to what steps were actually taken
by the Bank for recovery of the vehicle for sale in order ,
to recover its decretal dues. [Para 26] [255-G-H; 256-A-C]

Union of India v. Jyoti Chit Fund and Finance and Ors., D
[1976] 3 sec 607' referred to.

1.4. Instead of disturbing the order of the Executing
Court, which was passed in consonance with the
provisions of the Code of Civil Procedure, the High Court E
should have directed the respondent Bank and the
Executing Court to seriously pursue the recovery of the
vehicle or against any other property of the principal-
debtor, having particular regard to the finding of the '
Executing Court that the said fixed deposits represented F
the retiral benefits of the appellant. Hence, the order '
passed by the High Court is set aside and that of the
Executing Court is restored. [Paras 26 and 27] [256-C-E]

Case Law Reference :
G
[1985] 2 sec 1 relied on Para 15
[19871 1 sec 551 relied on Para 16

c20011 6 sec 591 relied on Para 16
[19761 3 sec 607 relied on Para 17 H
246 SUPREME COURT REPORTS [2008] 15 S.C.R.

A [19761 3 sec so1 refer~ed to Para 17
l ..

CIVIL APPELLATE JURISDIOTION : Civil Appeal Nos.
6440-6441 of 2008.

From the final Judgment and Order dated 28.2.2005 &
B 24.8.2005 of the High Court of Rajasthan at Jaipur in SBCRP
Nos. 26 of 2005 & 2008 of 2003 respectively.

Shobha, Harish Sharma and R.P. Yadav for the Appellant.

C Dhruv Mehta, Harshvardhan Jha, Yashrah Singh Deora and
T.S. Sabarish (for M/s K.L. Mehta & Co.) for the Respondents.

The Judgment of the Court was delivered by

AlTAMAS KABIR, J. 1. Leave granted.
D
2. On 28th May, 1986, the Respondent No.1 Bank
A I
sanctioned a loan of Rs.83,000/- to Shri Durga Prasad, the
Respondent No.2 herein. The appellant stood guarantee for the
Principal Debtor for repayment of the loan.

E 3. As the loan was not repaid by the Principal Debtor,
Durga Prasad, the Bank in 1992 ,filed Suit No.66 of 1992 for
recovery of its dues against the respondent No.2 in his capacity
as the loanee and against the appellant in his capacity as
guarantor. The suit was decreed on 19th December, 1994, by
F the learned Additional District and Sessions Judge, Bayana,
District-Bharatpur, in favour of the respondent No.1 'Bank for
a sum of Rs.1, 10,360/-, together with interest at the rate of
12.5% per annum from the date of institution of the suit till
realization. While decreeing the suit, the trial Court directed as
G follows:-

"The plaintiff shall be entitled to recover this amount by
auction sale of the hypothecated Matador Mahindra FC
RRD/1851. The plaintiff shall also be entitled for cost of
litigation~ If any amount remains to be paid even after
H
RADHEY SHYAM GUPTA v. PUNJAB NATIONAL BANK & 247
ANR. [ALTAMAS KABIR, J.]

auction sale of the Matador, then the same shall be A
recovered from other properties of the defendants. The suit
of the plaintiff is hereby decreed against the defendants
in the aforesaid terms."

4. The aforesaid directions have created some confusion
B
in the execution of the decree.

5. For the purpose of executing the decree the respondent
No.1 Bank initiated execution proceedings and though warrants
for attachment of the Matador were issued, the same were not
executed by the Bank on the ground that the vehicle was not c
traceable and instead the Bank sought attachment of the
appellant's Fixed Deposits with the said Bank made with the
amounts received by him by way of pension and gratuity. The
Executing Court allowed the Bank's application and ordered
attachment of the appellant's Fixed Deposit Receipts, D
hereinafter referred to as "FD Rs". The appellant moved the High
Court against the order of attachment and the High Court while
allowing the appellant's application, directed the trial Court to
pass appropriate orders in the light of the specific directions
given in the judgment and decree dated 19th December, 1994, E
for recovery of the decretal amount. The Executing Court by its
order dated 1st November, 2002, directed release of the
appellant's F.D.Rs and the pension amount with a further
.... ~
direction that the hypothecated Matador was to be auctioned .
first in terms of the directions contained in paragraph 11 of the F
Judgment dated 19th December, 1994. The Executing Court
also took the view that amounts paid towards gratuity and

-- pension could not be attached in view of the provisions of
proviso (g) of Section 60(1) of the Code of Civil Procedure,
hereinafter referred to as "the Code".
G
6. The Bank filed a Revision Petition against the said
order of the Executing Court dated 1st November, 2002, and
also applied for interim orders therein. On 15th October, 2003,
when the matter came up before the High Court, the appellant
herein was directed to forthwith deposit a sum of Rs.50,000/- H
248 SUPREME COURT REPORTS [2008] 15 S.C.R.

A with the Bank. He was also directed to furnish the complete
detai!s of the movable and 1 immovable properties of the
principal debtor with the stipulation that in the event the Bank's
revision petition failed, the amount to be deposited by the
appellant herein would be refunded to him with interest at the
B rate of 9% per annum. lnst~i3d of complying with the said
direction, the appellant herein' moved an application indjcating
· that two Fixed Deposit Receipts belonging to him of over a total y,
value of Rs.50,000/- were lying with the Bank and instead of
cash deposit of Rs.50,000/-- the said two Fixed Deposit
c Receipts could be adjusted against the said sum to be
deposited and the balance, if any, could be returned to the
appellant herein.

7. While disposing of the Revision Petition of the Bank,
the High Court noted in its judgment that the appellant herein
D had undertaken that he would furnish the Matador in question A
to the Bank for the purpose Cl>f auction within a period of one
week and the Bank would be free to auction the same in
accordance with the terms of the decree. It was also noted that
the appellant herein was prepared to submit a solvent security
E for realization of the balance decretal amount, which may still
rernain due after the adjustment of 50,000/- and the sale price
that would be fetched from the sale of the matador.

8. In the light of the above, the order of the Executing Court ~
~

was set aside and in terms .of the decree as also the order
F
passed by the High Court on i15th October, 2003, the amount
of Rs.50,000/- out of the appellant's Fixed Deposit Receipts
was directed to be adjusted Jn the first instance. It was also
. directed that on the Matador being furnished along with solvent
security before the learned gxecuting Court by the appellant
G
herein, the remaining amount under the Fixed Deposit Receipt
y
would be released to him. It was further directed that on the
Matador being produced, the decree holder Bank would be
entitled to realize the decretal amount by sale of the Matador
and while realizjng the balance of the decretal amount, if any,
H
RADHEY SHYAM GUPTA v. PUNJAB NATIONAL BANK & 249
ANR. [ALTAMAS KABIR, J.]
through the solvent security to be furnished by the appellant A
---
herein, the Fixed Deposit Receipts, which were accepted to
be the appellant's retirement benefits, were to be returned to
him.
9. On 5th April, 2005, the appellant filed a Review Petition B
before the High Court in respect of the order dated 28th
February, 2005, on the ground that the Revisional Court had
wrongly proceeded on the basis that the appellant had given
an undertaking to furnish the Matador to the Bank and that he
would also submit a solvent security for realization of the
c
decretal amount, if any amount remained to be recovered by
the Bank after sale of the Matador. The Review Petition filed
by the appellant was dismissed in limine by the High Court on
24tn Augast, 2005., h.olcfa19 that no case h~d been made out in
the Review Petition for review of the order dated 28th February,
2005. D
).

10. The Special Leave Petition is directed against the said
orders of the High Court dated 28th February, 2005 and 24th
August, 2005.
E
11'. Ms. Shobha, learned advocate, who appeared for the
appellant, questioned the judgment and order of the High Court
mainly on three grounds. Her first ground for challenge was that
the. direction of the trial Court in its decree was quite clear and
" 4
there was no ambiguity whatsoever which called for any
F
clarification by the High Court. She submitted that the direction
of the trial Court entitled the decree holder Bank to recover the
decretal amount as well as the cost of litigation by auction sale
of the hypothecated vehicle, and if any amount remained to be
paid even after the auction sale of the Matador, then the same
could be recovered from the other properties of the defendants. G
According to Ms. Shobha, the plain meaning which emerges
from such direction entails the sale of the Matador first and after
adjustment of the sale price with the amount to be recovered
under the decree, any amount still unpaid, could, at the second
stage, be recovered from the other properties of the defendant H
250 SUPREME COURT REPORTS [2008] 15 S.C.R.
y.

A Ms. Shobha submitted that. it was clearly the intention of the trial
Court that the sale proceed 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.
B
12. In this regard Ms. Shobha referred to and relied upon
the decision of this Court i~ the case of Industrial Credit and
Development Syndicate v. Smithaben H. Patel and Ors.,
[1999) 3 sec 80, wherein faced with a situation where the trial
Court had not prescribed any mode for payment of the decretal.
C amount, except for fixing of instalments, it was, inter alia, held
that the general rule of appropriation of payments towards a
decretal amount was that such-an amount has t9 !>~_adjusted
firstly, directly in accordance with the direction contained in the
decree, and in the absence of such direction, adjustments are
D to be made firstly in payme_nt of interest and costs and
thereafter in payment of the :principal amount, subject to the
exception that the parties could agree to the adjustment of the
payment in any other manner despite the decree.

E 13. The second ground urged by Ms. Shobha was that
although initially the appellant's Fixed Deposit Receipts. were
attached by the Executing Court, ultimately, on objections being
filed on behalf of the appellant, the Executing Court by its order
dated 1, 11.2002 came to the finding that the appellant's Fixed
F Deposit Receipts could not be attached in view of proviso (g)
to Sub-Section (1) of Section 60 of the Code of Civil
Procedure (hereinafter referr~d to as 'the Code'). Ms. Shobha
submitted that in the revision filed. by the Bank against the said
order of the Executing Court.it W()S erroneously rec6rded by the
High Court tha·t the .appellant hc;ld undertaken to produce the
G Matador before the.Bank so th(lt the same could be sold for
recovery of the Bank's dues and the balance dues, if any, could
then be recovered from a solventsecurity to be provided by the
appellant. It was submitted that since such an undertaking had
not been given to th.e High Court;a Review Petition was filed
H
RADHEY SHYAM GUPTA v. PUNJAB NATIONAL BANK & 251
ANR. [ALTAMAS KABIR, J.]
"' on behalf of the appellant which was dismissed in limine. Ms. A'
Shobha also added that without making any attempt to locate
the Matador, so that the same could be sold in keeping with
the directions given by the Trial Court for satisfaction of the
decree, the Decree Holder proceeded only against the
appellant since it held the Fixed Deposit Receipts of the 8
appellant in respect of the fixed deposit made out of the retiral
( ·1 benefits, including gratuity received by the appellant at the time
of his retirement from service. Ms. Shobha reiterated her
submission that, as had been rightly held by the Executing Court,
the appellant's Fixed Deposits which represented his retiral c
benefits could not be attached or sold to satisfy the decree
obtained by the Decree Holder Bank. She urged that even after
the retiral benefits obtained by the appellant had been
converted into Fixed Deposits it did not lose its essential
character of comprising the retiral benefits of the appellant, and
D
could not, therefore, be attached in view of proviso (g) to
Section 60(1) of the Code.

14. Although, the law is well-settled on the point, various
decisions were cited by Ms. Shobha in support of her
submission that the Executing Court could not go behind the E
decree or to alter the provisions thereof. The first decision cited
by her in this regard is the decision. of this Court in Rajasthan
Financial Corporation v. Man Industrial Corporation Limited,
-I [2003] 7 sec 522, wherein while construing the provisions of
Section 4 7 and Order XXI of the Code, this Court held that an F
Executing Court cannot go beyond the decree and that the
Executing Court must take the decree according to its tenor.
Ms. Shobha also referred to the decision of this Court in State
Bank of India v Mis. lndexport Registered and Ors., [1992] 3
sec 159, wherein the same principle had earlier.been deal_t G,
. with .
""-
15. Ms. Shobha's submission finds support in the decision
of this Court in Calcutta Dock Labour Board and Anr v. Smt.
Sandhya Mitra and Ors., [1985] 2 SCC 1, wherein it was
H
}

!
252 SUPREME COURT REPORTS [2008] 15 S:C.R.
.,.~
y ~

A reaffirmed that gratuity payabl~ to dock workers under a
scheme in absence of a Notification under Section 5 of the
I
I
J,.
Payment of Gratuity Act, 1972, would not be liable to attachment
. . • . I ~ •.

for satisfaction of a Court's decree. - -

B- 16. The same principle wa~ reiterated by this Court in -
Union of India v. Wing Commander R.R. Hingorani, [1987] 1
SCC 5~1 ~fld- Gorakhpµr University and Ors. v Dr. Shit/a y i
Prasad Nagendera and Ors., [2001) 6 SCC 591. I-

17. However, in all fairness, Ms: Shobha also cited the _
c decision of this Court in Union of India v. Jyoti Chit Fund and
Finance and Ors., [1976] 3 SGC 607, where while dealing with t
•...
the provisions of Sections 3 and 4 of the Provident Funds Act,
t
1925, prohibiting attachment of sums held by the Government,
as well as proviso (g) to Section 60(1) of the Code, this Court
1

D held that till such time as amounts payable by way of provident
.....
fund, compulsory deposits and pensionary benefits did not
,)'-
reach the hands of the employee they retained their character r
as such and could not, therefore,_be attached. However, once ~
the amounts were received by the employee they ceased to
E retain their original character and, were, therefore, capable of
being ~ttached. Ms. Shobha urg~d that the aforesaid decision ...
had been rendered long before the other decisions cited by her
and the subsequent
-
decisions would prevail over the earlier
-

. decision. }-
F
18.' In addition to her two afqresaid grounds, Ms. Shobha
lastly submitted that the revision petition filed by the Bank
before the High Court was in itse'.lf not maintainable in view of i--
the provisions of Section 115 of the Code, as amended, which l
makes it clear that if an order in favour of a party applying for
G revision decides the matter finally then only a revision would be
I
maintainable, but if the same did not decide the suit or other y ~

proceeding finally, then such revision would not be maintainable.
Ms. Shobha urged that in the instant case the Bank had filed a
revision against an interlocutory order which did not have the
H effect of finally disposing of the execution proceedings and
RADHEY SHYAM GUPTA v. PUNJAB NATIONAL BANK & 253
ANR. [ALTAMAS KABIR, J.]

consequently the revision filed on behalf of the Bank should A
have been dismissed by the High Court. Jn this regard, Ms.
Shobha referred to the decision of this Court in Shiv Shakti
Coop. Housing Society, Nagpur v. Swaraj Developer$ and
Ors., [2003] 6 SCC 659 and also in Surya Dev Rai v. Ram
Chander Rai and Ors., [2003] 6 sec 675 reported in the same B
volume at page 675.
~ ',I

19. Ms. Shobha urged that the High Court had erred in
interfering with the judgment and order passed by the Executing
Court and its judgment and order impugned in these
proceedings were liable to be set aside.
c
20. On behalf of the Bank, Mr. Dhruv Mehta submitted that
despite several attempts having been made to locate the
Matador, the same could not be traced and the Bank, therefore,
>· had no alternative but to proceed against the appellant in his D
capacity as the guarantor for recovery of its dues. Mr. Mehta
urged that the provision of proviso (g) to Section 60(1) of the
Code would apply only to the source of the amounts· received
by way of retiral benefit, such as pension and gratuity, but not
to payments made in respect thereof. On the other hand, once E
such payments were made, their character stood altered as
they became mixed with the other assets of the concerned
... employee. In support of his submission, Mr. Mehta also relied
~ on the case of Wing Commander R.R. Hingorani (supra) which
had been referred to by Ms. Shobha, wherein in the context of F
Section 11 of the Pensions Act, 1871, which provided for
., exemption of pension from attachment, this Court referred to
the decision in the Jyoti Chit Fund case (supra) where Krishna
Iyer, J., speaking for the Bench; had indicated that once the
monies covered by the provisions of the proviso to Section G
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.

21. On ·the construction of the directions of the trial Court,
which were subsequently altered by the High Court, Mr. Mehta H
254 SUPREME COURT REPORTS [2008] 15 S.C.R.

A urged that when the hypotheticated vehicle was not traceable,
the Bank could not be left without remedy and it could not have
been the intention of the Trial· Cou'rt that even. if the vehicle could
not be apprehended the decree of the Bank would remain
unsatisfied. If a pragmatic meaning is to be given to the
B language of the decree, it would ~ave to be interpreted to mean
that an attempt should first be made to realise the decretal dues ·
., ;

y '5
by sale of the Matador, and, thereafter, to realise the balanc.z
dues, if any, from the solvent security to be·produced by the
appellant herein. The decree do~s not indicate that in the event
c the Matador could not be sold the decree could not be
I

executed at all against the other assets either of the Judgment
Debtor or the guarantor.

22. Mr. Mehta urged that in Hingorani's case (supra) the
High Court was considering the question as to whether the I
~

D Executing Court could go behind the decree in coming to the ~
~
\
finding that the same was not executable against the appellant
on account of proviso (g) to Section 60(1) ofthe Code, and in
that context the directions given by the High Court in the revision
petition were justified.
E
23. Mr. Mehta lastly conte,nded that the order passed by
the learned Executing Court on· .1st November, 2002, impugned
in revision by the respondent Bank, was final in nature and did ,.
not, therefore, attract the bar under the proviso to Section f- '>

F 115(1) of the Code. [
.24. Having considered the submissions made on behalf
of the respective parties, we are inclined to accept Mr. Mehta's .
submission that the :order impugned in the revision petition
before the High Court did notattractthe bar of the proviso to r
'
G sub~section (1) of Section 1.15.ofthe. Code as it sought to finally F
I

~
~

decide the manner in which the decree passed in Suit No.66 ''
of 1992 by the learned Additional. and. Sessions Judge,
Bayana, Rajasthan; was to be: satisfied. However, wear~ also ~
·of the view that having regard to proviso (g) .to Section 60(1)
H of the Code, the High court ceimmitted a jurisdictional error in
RADHEY SHYAM GUPTA v, PUNJAB NATIONAL BANK & 255
ANR. [AL TAMAS KABIR, J.]
" directing that a portion of the decretal amount be satisfied from A
the fixed deposit receipts of the appellant held by the Bank. The
High Court also erred in placing the onus on the appellant to
produce. the Matador in question for being auctioned for
recovery of the decretal dues. In other words, the High Court
erred in altering the decree of the Trial Court in its revisional B
jurisdiction, particularly when the pension and gratuity of the
1> ·~ appellant, which had been converted into Fixed Deposits, could
I
not be attached under the provisions of the Code of Civil
Procedure. The decision in the Jyoti Chit Fund case (supra)
has been considerably watered down by later decisions which c
have been indicated in paragraphs 15 and 16 hereinbefore and
it has been held that gratuity payable would not be liable to
.attachment for satisfaction of a Court decree in view of proviso
(g) to Section 60(1) of the Code·.

> 25. We also agree with Ms. Shobha that the High Court D
could not have gone behind the decree in the execution
proceedings and the alteration in the manner of recovery of the
decretal amount was erroneous and cannot be sustained. We
t also agree with Ms. Shobha ·that even after the retiral benefits,
such as pension and gratuity, had been received by the
E,
appellant, they did not lose their character and continued to be
covered by proviso (g) to Section 60(1) of the Code. Except
for the decision in the Jyoti Chit Fund and Finance case I
-\ (supra), where a contrary view was taken, the consistent view
taken thereafter support the contention that merely because of F
the fact that gratuity and pensionary benefits had been received
by the appellant in cash, it could no longer be identified as such
retiral benefits paid to the appellant.

26. The High Court, in our view, erroneously proceeded on G
the basis that a concession had been made by the appellant
that he was willing to have the decretal amount adjusted partly
from his fixed deposits, which represented his retiral benefits
and that he had also volunteered to produce the vehicle before
the Bank so that the same could be sold to recover the_ major
H
256 SUPREME COURT REPORTS [2008] 15 S.C.R.
y

A portion of the dues. Further-more, although, the Bank was
entitled to proceed both against the principal-debtor and the
guarantor for reco\/1ery of its due$, the mode of recovery was
prescribed by the Trial Court, whic~, in our view, clearly indicates
that the Bank should at first recover whatever amount it can from
8 the sale of the Matador. The right of the Bank to proceed
against either the principal..:..debtot or the guarantor stood
y {.
restricted by the directions of ,the .Trial Court. Except for
recording that the vehicle was not .traceable, nothing is recorded
in the impugned jucjgment of the, High Court as to what steps
c were actually taken by the Bank fpr recovery of the Matador for
sale in order to recover its decretal.dues.Jn our view, instead
of disturbing the order of the Executing Court, which was
passed in consonance with the provisions of the Code of Civil
Procedure, the High Court should have directed the respondent
Bank and the Executing Court to seriously pursue the recovery
D 1

of the Matador or against any other property of.the principal-
debtor, having particular regard to the finding of the Executing
Court that the said fixed depbsits represented the retiral
benefits of the appellant.
E 27. We, therefore, allow the appeal, set aside the order
passed by the High Court and, restore that of the Executing
Court. The respondent Bank may take appropriate steps for
• I

recovery of the Matador for recovery of its dues in the manner
indicated in the judgment and il'l the decree of the Trial Court. ~

F Consequently, let the fixed deposit receipts of the appellant be
I

released to him as per the directions of the Executing Court
while disposing of the appllcation dated 6.2.1999 and
27.7.2001 by its order dated 1: 11.02.
S.K.S. Appeals allowed.

~