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Showing posts with label 000/- from out of Rs.5 lakhs receivable by the petitioner towards the gratuity. Show all posts
Showing posts with label 000/- from out of Rs.5 lakhs receivable by the petitioner towards the gratuity. Show all posts
Saturday, October 6, 2012

whether under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Administration of Land Act, 1972 (for short `the 1972 Act’) a final decree stood abated. The Full Bench referred to the notification issued under Section 3(1) of the 1972 Act, scanned the language employed in sub-section (4) of Section 4 and came to hold that a final decree proceeding cannot be characterized as a suit or a proceeding for right, title or interest in respect of any land. It has been opined there that Section 4(4) does not include an appeal arising out of a final decree as the same would not declare any right, title or interest of the parties but deal with certain matters pertaining to what has already been declared. Pendency of an appeal against the final decree cannot take away the finality of the preliminary decree which has already declared the rights, title and interest of the parties. We may repeat for clarity that in the said case, the preliminary decree passed in the suit had become final as it was not challenged by way of an appeal. Thus, the factual matrix was quite different. Suffice it to say that in the present case the title appeal was pending against the preliminary decree and an application under Section 4(c) had been preferred. It would have been advisable on the part of the appellate court to record a finding that the entire proceeding of the civil suit stood abated. Unfortunately, the appellate court directed abatement because of non-substitution of the legal heirs of one of the respondents. We are conscious that an order is to be passed on an application filed under Section 4 (c) of the Act, but we do not intend to relegate the matter to that stage as it is obvious that in the suit, right, title and interest and status were involved which do come within the scheme of consolidation. Hence, the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct. The learned Judge dealing with the writ petition as well as the learned Judges deciding the intra-court appeal did not appreciate the lis in proper perspective and opined that the reliance on the findings recorded by the civil court by the revisional authority under the 1956 Act could not be faulted. The said conclusion is wholly erroneous and deserves to be overturned and we do so. 37. Consequently, the appeal is allowed, the orders passed by the learned single Judge as well as of the Division Bench are set aside and the matter is remanded to the file of the learned single Judge to decide the matter on merits on the basis of the material brought before the Consolidation Authorities. We repeat at the cost of repetition that none of the findings recorded by the civil court shall be taken aid of. There shall be no order as to costs.

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                                                                Reportable                         IN THE SUPREME COURT OF INDIA      ...
Tuesday, September 4, 2012

filed EA.No.217 of 2010 for attachment of the EP amount of Rs.1,34,000/- from out of Rs.5 lakhs receivable by the petitioner towards the gratuity, arrears of salary and leave encashment pertaining to her husband = The deceased judgment debtor was a teacher in the Government school and was, hence, a Government Employee. After his death, the petitioner herein was impleaded as the respondent in EP.No.81 of 2010. Pending the EP, respondent No.1/decree holder filed EA.No.217 of 2010 for attachment of the EP amount of Rs.1,34,000/- from out of Rs.5 lakhs receivable by the petitioner towards the gratuity, arrears of salary and leave encashment pertaining to her husband. The said application was allowed by the lower Court by the impugned Order. Feeling aggrieved by the same, the present Civil Revision Petition is filed by the petitioner."Admittedly the gratuity amount is now in the hands of the Department. It is difficult to say that at the time when the attachment was sought the amount of gratuity is held by the Department in trust for the judgment-debtor, because now the judgment-debtor is dead and no one can have property in trust for a dead person. True once the property was held by the Department perhaps in trust for the deceased wife of the 2nd respondent. But, when once she died, it is difficult to hold that again the property is held by the Department in trust for the deceased wife. Then what is the character of the property held by the Department. We feel that it can only be a debt to be paid to the legal representatives of the deceased. Being the legal representatives of the deceased, they have got a claim to get the amount which was earned by the deceased wife of the 2nd respondent as gratuity. Since it is only a debt in the hands of the Department, there is nothing wrong in attaching the property for realization of the amount due from the judgment debtor. It cannot be disputed that the amount that can be now realized by the Department from the legal representatives is not an asset of the deceased. Assets of the deceased are liable to the debts of the deceased. If the assets came in the possession of the legal representatives or if the assets are held by some person for the legal representatives of the deceased, the properties are liable to be attached." -Admittedly, in the present case, the judgment debtor, who is a Government servant, has died and the gratuity and other amounts payable to him were sought to be recovered from his wife, who is his legal representative. Having regard to the Division Bench judgment of the Kerala High Court (cited supra), with which I am in agreement, I do not find any merit in the submission of the learned Counsel for the petitioner.

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The Hon'ble Sri Justice C.V.Nagarjuna Reddy Civil Revision Petition No.3537 of 2011 26-03-2012 Sake Gurumurthy (died) per LRs Sm...