AP HIGH COURT ; AMARAVATHI
THE HON’BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION No.1469 of 2021
KARNATI MALYADRI
Versus
CHITIPROLU SRINIVASA RAO
ORDER:-
Heard Sri Ramakoteswara Rao, learned counsel for the
petitioner.
2. The petitioner is the defendant. Aggrieved by the orders of
attachment of money lying with garnishee namely the Singareni
Collieries Company Ltd., Hyderabad said to be belonging to the
respondent, in the event of the petitioner failing to furnish
security for the suit amount.
3. Learned counsel for the petitioner raised several
objections. The first objection is failure of the respondent to
make garnishee a party to the suit. A garnishee is undoubtedly
a third party to the suit proceedings. When the suit is in respect
of claim in between the plaintiff and the defendant, there cannot
be any impleadment of third party as such. The accidental
position of the garnishee in a transaction relating to the parties
to the suit cannot give garnishee a status of being a party to the
suit.
4. Another objection raised by the learned counsel for the
petitioner is that in terms of Order XXXVIII Rule 5 of the Code of
Civil Procedure Code, 1908 (hereinafter referred as “C.P.C”), the
trial Court has no jurisdiction to attach the money lying with
the garnishee and unnecessarily the parties should go on with
the execution proceedings where in terms of Order XXI Rule 46
C.P.C, such course can be taken. In support of his contention,
learned counsel for the petitioner relied on the decision reported
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in J.Balakrishna vs. United Bank of India1. In Para 8 it is
stated as under:
“The money in the hands of third party also cannot be attached as
a garnishee (debtor’s debtor) unless a decree is passed in the suit.
Such money can only be attached in execution proceedings and
not in pendency of the suit. Therefore, this Court holds that both
the orders in the I.As., are totally illegal and uncalled for. This
Court is of the considered view that the learned Judge has not
followed the simple legal principles. Hence, both the orders passed
in the IAs., are set aside”.
5. This contention is also difficult to accept in view of Order
XXXVIII C.P.C. where certain interim measures to safeguard the
interest of the plaintiff in a suit, before passing judgment are
stated. Relevant for the present purpose is Order XXXVIII Rules
5 and 6 C.P.C. There is no prohibition as such under Order
XXXVIII C.P.C, taking recourse to attachment of money lying
with a third party who is otherwise known as a garnishee, in the
process of securing interest of the plaintiff, before judgment.
6. For this purpose, the plaintiff is required to make out the
reasons as stated in Order XXXVIII Rule 5 C.P.C. Further, Order
38, Rule 11-A of CPC specifically provides for application of
provisions of execution of decree at this stage. Therefore, in the
light of such provisions provided for, it is rather difficult to agree
with the view in J.Balakrishna case (referred supra) of learned
Judge of this Court. I respectfully differ with such view. There is
absolutely no bar or prohibition for a party, who stands as the
plaintiff to realise Order XXXVIII Rule 5 C.P.C for attaching
money in the hands of garnishee. It is further to be noted that
1
1999 (4) ALD 22
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Order XXXVIII C.P.C itself provides raising or removal of such
attachment provided the defendants make out certain cogent
different reasons. Therefore, viewed from such perspective it
cannot be stated as a universal rule that there cannot be
attachment before judgment, when there is property either in
the shape of cash or movables, in the hands of a garnishee.
7. It is not necessary for the plaintiff to wait for a decree and
to take recourse under Order XXI Rule 46 C.P.C in the course of
execution proceedings. If such course is adopted, it would be
sometimes, denying of rightful relief for which a party is entitled
and he cannot be made to bear uncertainty till disposal of the
suit. If such course is adopted in certain instances there is
possibility of making the plaintiff misuse of the same in
determination of the plaint denying an opportunity of getting
security for the claim, set forth against the defendant. Therefore,
the contention of learned counsel for the petitioner basing on
the above ruling cannot be treated as absolute proposition of
law.
8. Another objection raised by the learned counsel for the
petitioner is with reference to territorial jurisdiction of the trial
Court to entertain the suit on the ground that the defendant is a
resident of Guntur. This objection can be raised by the
petitioner before the trial Court.
9. One more circumstance to consider in this matter is that
the petitioner did not as such raise any objection in I.A.No.301
of 2021 in the suit before the trial Court on the same lines
which are sought to be raised now. Therefore, the very approach
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of the petitioner apparently is improper. He can as such raise all
objections which are available to him in terms of law by
appearing in the trial Court by means of his counter.
10. In the above circumstances, finding that there is no
justification to entertain this Civil Revision Petition, in exercise
of extra ordinary jurisdiction under Article 227 of the
Constitution of India, the civil revision petition has to be
dismissed at the stage of admission.
11. In the result, the Civil Revision Petition is dismissed.
However petitioner is permitted to raise all such objections
which are open to him and permissible in law in opposing such
claim of the respondent before the trial Court and the trial Court
is directed to dispose of I.A.No.301 of 2021 in O.S.No.194 of
2021 within four (04) weeks from the date of receipt of a copy of
this order. Learned counsel is also permitted to place web copy
of this order for consideration of the trial Court which shall be
taken note of. No costs.
All pending petitions, if any, shall stand closed.
_________________________________
JUSTICE M.VENKATA RAMANA
Date : 28.12.2021
KA
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THE HON’BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION No.1469 of 2021
Date : 28.12.2021
KA
