IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2631 of 2025 Date of Decision: 02.06.2025 _______________________________________________________ Gujjar …….Petitioner Versus H.P. State Co-operative Bank Limited & another … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Mandeep Chandel, Advocate. For the Respondents: Mr. Sunil Mohan Goel, Advocate, Senior Advocate with Mr. Raman Jamalta, Advocate, for respondent No.1. Mr. Dheeraj Kumar, Advocate, for respondent No.2. _______________________________________________________ Sandeep Sharma, Judge(oral): Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Mandeep Chandel, learned counsel for the petitioner, is that pension account of the petitioner could not have been attached for recovery of loan amount availed by one late Sh. Mahavir Singh, from whom petitioner herein had furnished guarantee. 2. Vide order dated 30.05.2025, this Court called upon learned counsel representing the respondent-Bank to have 1Whether the reporters of the local papers may be allowed to see the judgment? 2 instructions qua aforesaid aspect of the matter. Though, respondents have filed reply, but same is conspicuously silent with regard to authority, if any, of the respondent to order attachment of pension account of the petitioner for recovery of loan amount. 3. Mr. Sunil Mohan Goel, learned Senior counsel, while referring to the reply, attempted to argue that since guarantee i.e. petitioner herein has given undertaking that in the event of default, if any, in repayment of loan availed by late Sh. Mahavir Singh, amount can be deducted from his pension, petitioner is estopped at this stage to claim that pension account of the petitioner could not have been attached. 4. Hon’ble Apex Court in case titled Radhey Shyam Gupta Vs. Punjab National Bank (2009) 1 SCC 376, has held that pension and gratuity of the petitioner cannot be attached or withheld for appropriation of a decree of any Civil Court. “5. The Executing Court allowed the Bank's application and ordered attachment of the appellant's Fixed Deposit Receipts, hereinafter referred to as "FDRs". 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, for recovery of the decretal amount. 6. The Executing Court by its order dated 1st November, 2002, directed release of the appellant's F.D.Rs and the 3 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 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". 34. We also agree with Ms. Shobha that the High Court 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. 35. We also agree with Ms. Shobha that 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 60(1) of the Code. Except for the decision in the Jyoti Chit Fund and Finance case (supra), where a contrary view was taken, the consistent view taken thereafter support the contention that merely because of 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. 36. The High Court, in our view, erroneously proceeded on the basis that a concession had been made by the appellant that he was willing to have the decreetal 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 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 was prescribed by the Trial Court, which, in our view, clearly indicates that the Bank should at first recover whatever amount it can from the sale of the Matador. 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 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 Matador for sale in order to recover its decretal dues.” 5. If the aforesaid judgment is read in its entirety, Hon’ble Apex Court has categorically held that retiral benefits, such as 4 pension and gratuity, received by a retiree do not lose their character and continue to be covered by proviso (g) to Section 60(1) of CPC. 6. It would be also apt to take note of Section 11 of Pension Act, 1871, which reads as under: “11. Exemption of pension from attachment .- No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for, any demand against the pensioner, or in satisfaction of a decree or order of any such Court.” 7. Careful perusal of aforesaid provision clearly reveals that no pension granted or continued by Government on account of past services shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such Court. Since in the case at hand, it clearly emerges from the reply filed by the respondents that pension account of the petitioner has been ordered to be freezed on account of his having failed to repay the loan amount availed by late Sh. Mahavir Sing, this Court having taken note of aforesaid law laid down by Hon’ble Apex Court as well as provisions contained under Section 11 of Pension Act is persuaded to agree with learned counsel for the petitioner, that in any eventuality pension account of the petitioner could not have been attached for recovery of loan amount, rather for that purpose, other 5 modes of recovery as provided under law could have been resorted to. 8. Consequently, in view of above, this Court finds merit in the present petition and accordingly, the same is allowed. The respondent No.1 is directed not to recover any further amount from the gratuity amount of the pension w.e.f. 1st June, 2025. Pending applications, if any, stand disposed of. (Sandeep Sharma), Judge June 02, 2025 (shankar)