The petitioner is the second defendant in O.S 294/85 on the file of the Sub-Court, Madurai who is only a garnishee. The first respondent filed the said suit for recovery of a sum of Rs. 17,555-28 from the second respondent herein. Pending the suit, the first respondent obtained an order of attachment of a sum of Rs. 22,000/- due to the second respondent herein, lying in the hands of the petitioner. In the garnishee application, notice was ordered to the petitioner. Since the petitioner did not represent, the order of attachment was made absolute on 29.8.86 Subsequently the petitioner was directed to deposit the amount in Court by order dated 23.12.86 which was not complied with. Thereafter the suit was decreed and the first respondent tiled E.P 80/88 seeking a direction, directing the petitioner herein to deposit the decree amount from out of the attached amount, lying with the petitioner. The said petition was dismissed by the Executing Court on the ground that without an order of attachment under Order 21, Rule 46 C.P.C and without issuing notice under Order 21, Rule 46A of C.P.C the petitioner herein cannot be directed to deposit the amount. The Executing Court dismissed the said E.P by order dated 1.12.89 As against the same, the first respondent herein filed an appeal in C.M.A 44/90 on the file of District Court, Madurai. The First Additional Judge, by his order dated 23.8.91 has allowed the appeal and directed the petitioner to deposit the decree amount into Court. Aggrieved by the same, the petitioner preferred this revision.
2. Mrs. P. Bhagayalakshmi, the learned counsel for the petitioner contended that an order directing the petitioner to deposit the amount under Order 21, Rule 46B of C.P.C can be passed after issue of notice to the garnishee, as contemplated under Order 21, Rule 46A of C.P.C The lower appellate court has proceeded on an assumption that the decree amount is available with the petitioner herein, since the petitioner did not respond to the notices issued in respect of the order of attachment pending the suit. Even though an order of attachment was made pending the suit, the Rules require the notice to be issued under Order 21, Rule 46A of C.P.C before ever the garnishee is directed to deposit the amount. Hence the order of the lower appellate court is liable to be set aside.
3. Mr. Srinivasan, the learned counsel for the first respondent contended that once an order of attachment is made pending the suit, there is no need to issue a fresh notice under Order 21, Rule 46A of C.P.C The Court is empowered under Order 21, Rule 46B of C.P.C to direct the garnishee to deposit the amount and hence the revision is liable to be dismissed.
4. I carefully considered the contention of both the counsel. The undisputed facts are that the first respondent filed the suit against the second respondent and obtained an order of attachment pending the suit in respect of the amount lying with petitioner-garnishee. The garnishee did not respond to the notices sent by the Court in the said proceeding. The suit has been decreed and the execution is levied.
5. The attachment before judgment is governed by the provision of Order 38, Rule 5 of C.P.C Once the order of attachment is made pending the suit, that attachment would continue till the same is raised. Hence mere is no need for the decree holder to seek for fresh order of attachment under Order 21, Rule 46 of C.P.C The attachment is deemed to be in effect and as such the decree holder can proceed against the attached property.
6. The short question is whether the notice is necessary. The learned counsel for the petitioner relied upon the judgment reported in Executive Engineer T.C Division, K.S.E Board v. J.H Sharma (AIR 1988 Kerala 285) wherein a Division Bench of the Kerala High Court, in an identical case, has held as follows:
“It has to be noticed that R. 46 does not contain any provision enabling the garnishee to raise any objection though it gives opportunity to the garnishee to subject himself to the order by making payment into Court. The next step is provided by R. 46A. He has to be given notice either to pay the amount into Court or to show cause why he should not do so. According to R. 46B, where he fails to pay the amount in Court and also fails to appear and show cause in answer to the notice, the Court may order him to comply with the terms of the notice and on such order execution may issue as though such order were a decree against him. This is the consequence of his failure to respond in terms of the notice under R. 46B. Where he appears and disputes his liability R. 46C requires that the court should decide the question as if it were an issue in a suit and upon the determination of such issue the Court should pass such order as it deems fit. The Court may uphold the contention raised by the garnishee of reject his contention and pass appropriate orders. Such an order is appealable under R. 46H. Thus the scheme of the rules contemplates a specific opportunity being given to the garnishee to show cause why he should not pay the amount into court. If he raises an objection the court has a duty to consider the objection and pass appropriate orders. The rules do not require him to raise an objection sua motu before receiving a show cause notice under R. 46 A. The fact that he did not suo motu file an objection when the attachment was effected before judgment does not take away his right under the above rules to raise an objection.”
From the above judgment, it is very clear that in spite of the order of attachment pending the suit, the notice under Order 21, Rule 46A of C.P.C is necessary. In case if the garnishee fails to respond to the notice under Order 21, Rule 46A of C.P.C then only the Court is empowered to pass an order under Order 21, Rule 46B of C.P.C But when the garnishee appears and puts forth their objections, the Court has to enquire as to the dispute raised by the garnishee, as contemplated under Order 21, Rule 46C of C.P.C
7. As held in Alsidass Kaverlal v. J. Hiriya Gowder (1960 II MLJ 561) the prohibitory order issued by the Court will operate to bar the payment to the judgment debtor by the garnishee of all the amounts payable as upto the date of attachment alone. The order will not operate in respect of further earnings of the judgment debtor beyond that date. In such circumstance, it is absolutely necessary that the garnishee should be given an opportunity at the time of execution proceedings to put forth their objections in case if the amount to the extent of the decree debt is not available with them. Since admittedly no notice was served to the petitioner, as contemplated under Order 21, Rule 46A of C.P.C the order of the lower Appellate Court is liable to be set aside.
8. Since already the matter has been dragged on considerably, I am of the view that it is unnecessary for the lower court to issue notice and follow the formalities. Since the parties are before this court, I set aside the order of the lower Appellate Court in C.M.A 44/90 and restore the E.P 80/88 on the file of the Sub-Court, Madurai for fresh disposal. The petitioner has already filed the objections before the lower Appellate Court. The Executing Court is directed to hear both parties and dispose of the E.P on merits and in accordance with law.
KA/RR/VCS
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