Judgment :- SRINIVASAN, J. 1. These appeals are against the common order passed by the learned judge on the Original Side pending a suit on his file by which an attachment has been directed of an amount kept in deposit under T.D.R. Receipt Nos. 594792 and 594793 dated 11-7-1994 with the plaintiff and an injunction is granted restraining the defendants from withdrawing the said amount from the said bank. 2. The suit is filed by the first respondent in these appeals on an equitable mortage for recovery of a sum of Rs. 2,13,67,591/- with interest and in default of payment, direction to sell the mortgage properties set out in Schedules I and II to the plaint. The first defendant is the mortagagor while defendants 2 to 4 are the guarantors. The plaintiff filed Original Application No. 629 of 1995 and Application No. 3064 of 1995, the former for an injunction restraining the garnishee-fifth respondent therein from withdrawing the amounts due under the two T.D.R. receipts each for Rs. 15,00,000/- standing in his name with the applicant bank till the disposal of the suit and the latter for attachment before judgment of the said two term deposits. Though the fifth respondent in the application was not made a party to the suit, in the affidavit filed in support of the applications it is alleged that two deposits were made under T.D.R. Nos. 594792 and 594793 in the name of the fifth respondent, an advocate, for Rs. 15,00,000/- each. It is alleged that the defendants in their pursuit to pay off the loans to begin with, had by their letters dated 8-7-1994 and 9-7-1994 deposited the said amount for a period of 120 days initially in the name of the fifth respondent. The affidavit proceeded as if the amount belonged to the mortgagor and that it is not the money of the fifth respondent. It is expressly stated in the affidavit that the mortgagor had admitted by written correspondence that the money belonged to the mortgagor and not to the fifth respondent. It is also alleged that the defendants were closing down their business and secreting all the assets and profits and further encumbering the properties. It is expressly stated in the affidavit that the mortgagor had admitted by written correspondence that the money belonged to the mortgagor and not to the fifth respondent. It is also alleged that the defendants were closing down their business and secreting all the assets and profits and further encumbering the properties. After service of notice, the Director of the first defendant filed a counter-affidavit in which it was stated that the sum was kept in deposit as a ‘no lien’ deposit with the plaintiff bank on the specific condition, understanding and agreement that it would be appropriated by the bank only in the event of the ban k accepting the compromise proposal submitted by the mortgagor. It is also stated in the counter affidavit that third parties had advanced monies on condition of confidentiality and in order to safeguard their position, the money was deposited in the name of the legal adviser of the first defendant, who is sought to be made out as the garnishee. In short, the contention of the defendants was that the fifth respondent was not a garnishee and the amount did not belong to the mortgagor. 3. The plaintiff had also filed an application for appointment of a Commissioner to inspect the property and take an inventory in the office premises of the defendants and the Commissioner had submitted an interim report that he could not execute the warrant. He had stated in the report that he could not find any office of the first respondent at the address given by the plaintiff. He had also mentioned in the report that when he attempted to serve notice on the third defendant, she refused to receive the same. The report of the Commissioner does not mention the date or place on which such notice was attempted to be served by him. 4. The learned judge has taken the view that the amount belongs to the first defendant mortagagor though it is deposited in the name of the fifth respondent and, is, therefore, liable to be attached. For that purpose, the learned judge has placed reliance on a letter dated 14-9-1994 written by the first defendant to the plaintiff. In that letter, the following passages occur and they have been extracted by the learned judge in his order:— “In addition to the above, we are in a position to pay only a sum of Rs. For that purpose, the learned judge has placed reliance on a letter dated 14-9-1994 written by the first defendant to the plaintiff. In that letter, the following passages occur and they have been extracted by the learned judge in his order:— “In addition to the above, we are in a position to pay only a sum of Rs. 30 lakhs which has been borrowed from our relatives, friends and business associates and kept in no-lien account with you on 9-7-94. Thus we are paying total amount of Rs. 56.88 lakhs towards our entire dues. We would also like to bring to your kind attention that the ‘no lien’ deposit of Rs. 30 lakhs was raised on the specific understanding that the agricultural land (value Rs. 78 lakhs) under Equitable Mortage to your Bank, would be sold to lenders of the deposit amount after the documents pertaining to the lands are released from your charge. “The balance Rs. 12 lakhs represents sale of total shareholding of promoters equity shares (under lock-in) in Aquamarine Food Products Ltd., belonging to the guarantors: Mr. S. Vijayakumar, Mr. V.K.P. Sunkavally and Mrs. S. Jayashree. Thus, when the payment of Rs. 12 lakhs is received from Rank Aqua, being cost of acquisition of our holding in Aquamarine, the same will be used for meeting the balance amount due to the lenders of deposit amount of Rs. 30 lakhs held in no-lien account with you.” 5. The learned judge has opined that as the first defendant had referred to the amount as having been borrowed by it from others and used the expression ‘lenders of the deposit,’ the said amount could be treated only as that belonging to the first defendant mortgagor and, therefore, the fifth respondent in the application was in the position of a garnishee. The learned judge has also made a reference to the fact that the fifth respondent had admitted that it was not his money and it belonged to other parties. The learned judge has also incidentally referred to the interim report of the Commissioner and drawn an inference that the defendants were trying to screen their assets and attempting to delay the execution of the decree which might be passed against them. On the aforesaid reasoning, the learned judge has granted the prayers contained in the applications. 6. The learned judge has also incidentally referred to the interim report of the Commissioner and drawn an inference that the defendants were trying to screen their assets and attempting to delay the execution of the decree which might be passed against them. On the aforesaid reasoning, the learned judge has granted the prayers contained in the applications. 6. Aggrieved by the said order, the fifth respondent in the applications has filed two appeals, O.S.A. Nos. 347 and 348 of 1995, and the first defendant has filed two appeals, O.S.A. Nos. 27 and 28 of 1996. During the pendency of these appeals, one Rank Acqua Estates represented by its Chairman and Managing Director has filed C.M.P. Nos. 1928 to 1931 of 1996 for impleading itself as a party-6th respondent in the appeals. In the affidavit filed in support of the said applications it is stated that the amount of Rs. 30,00,000/- deposited with the plaintiff-bank belonged to the petitioner and it was lent only by the petitioner. It is stated that the said fact is evident from the two Pay. Orders bearing Nos. 601626 and 601627 dated 9-7-1994 drawn on the petitioners Bankers viz., State Bank of India, Egmore in favour of the first respondent in the C.M.Ps. who is the appellant in O.S.A. 347 and 348 of 95. A Certificate is also issued by the State Bank of India, which is filed as an Annexure to the affidavit. Reference is made in the affidavit to the fact that the plaintiff-bank had agreed to keep the amount as a ‘no lien’ deposit and return the same after the expiry of the period of deposit. It is alleged that it is not open to the plaintiff-bank to go back on the Special Contract and seek to attach the said amount by making a claim against the defendants. 7. The applications are opposed by the plaintiff-bank which has filed a counter affidavit. It is contended that the petitioner ought not to be impleaded in the appeals as it had ample opportunity in the trial court to get itself impleaded. Secondly it is submitted that the petitioner company had entered into a Memorandum of understanding, to take over Aqua Marine Foods Ltd., which is a sister concern of the first defendant in the suit and promoted by the second defendant, who is one of the Directors of the first defendant company. Secondly it is submitted that the petitioner company had entered into a Memorandum of understanding, to take over Aqua Marine Foods Ltd., which is a sister concern of the first defendant in the suit and promoted by the second defendant, who is one of the Directors of the first defendant company. It is stated in the affidavit that the petitioner should be called upon to produce the Board Resolution as well as the balance sheet, income-tax, returns and the minutes of the Board Meeting. It should also be directed to produce the Memorandum of Understanding entered with Aqua Marine Food Limited, which would enlighten the two facts. Apart from the above averments, the counter-affidavit proceeds to refer to the amount due from the defendants to the plaintiff bank and to some extent to repeat what has been stated in the affidavit filed in support of the application for attachment. 8. We heard learned counsel on both sides at length. We find that the petitioner in C.M.P. Nos. 1928 to 1931 of 1996 is a necessary party as it is claiming to be the owner of the amount which is kept in deposit with the plaintiff bank and which is now attached by the order of the learned judge. As the petitioner has got an interest in the subject matter, it is a necessary and proper party. Hence, we reject the objections raised by the plaintiff and implead the petitioner as a party-6th respondent to the appeals. Hence, C.M.P. Nos. 1928 to 1931 of 1996 are ordered. 9. It is, however, not necessary for us to decide in these appeals whether the newly impleaded 6th respondent is the owner of the money which is sought to be attached. Suffice it for the purpose of these appeals to consider the question whether the fifth respondent in the applications filed by the plaintiff is a garnishee and whether the amount deposited by the fifth respondent with the plaintiff-bank is liable to be attached and whether there can be an order of injunction restraining the fifth respondent from withdrawing the said amount from the plaintiff bank. 10. At the outset, it must be pointed out that there is a clear misconception of the expression ‘garnishee’ not only on the part of the plaintiff, but also on the part of the trial judge. 10. At the outset, it must be pointed out that there is a clear misconception of the expression ‘garnishee’ not only on the part of the plaintiff, but also on the part of the trial judge. A garnishee is a person who is bound to pay certain amount to the defendant in a proceeding or a person who is in possession of certain amounts belonging to the defendant. In the ‘Law Lexicon’ by P. Ramanatha Aiyar, Reprint Edition 1993, at page 473, the expression ‘garnishee order’ is defined thus:— “Order of Court to attach money or goods belonging to a judgment-debtor in the hands of a third person.” The expression ‘garnishment’ is also defined, which reads as follows:— “Process of attachment of money in respect of which a garnishee order has been obtained. Garnishment is proceeding by which plaintiff in an action seeks to reach the rights and effects of defendant by calling into court some third party, who has such effects in his possession or who is indebted to defendant.” 11. Order 8-A of the Code of Civil Procedure, which relates to Third Party Procedure; begins by saying, “where a defendant claims to be entitled to contribution from or indemnity against any person not already a party to the suit. “Thus, Order 8-A of the Code of Civil Procedure will come into play if the defendant claims to be entitled to contribution from a third party or indemnity against a third party. Order 21, Rule 46A which provides for ‘notice to garnishee’ reads in so far as it is relevant as follows:— “The Court may in the case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under Rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt”. Thus, under the rule, ‘garnishee’ is a person who is liable to pay the debt due to the defendant-debtor. 12. In this case, the materials on record do not show that any amount was due from the fifth respondent in the applications to the first defendant-mortgagor or defendants 2 to 4 who are the guarantors. The very first letter under which the term deposit is made by the fifth respondent with the plaintiff-bank is dated 8-7-1994. 12. In this case, the materials on record do not show that any amount was due from the fifth respondent in the applications to the first defendant-mortgagor or defendants 2 to 4 who are the guarantors. The very first letter under which the term deposit is made by the fifth respondent with the plaintiff-bank is dated 8-7-1994. The relevant portion of the letter reads thus:— “As decided then, these deposits will be ‘no-lien’ deposits and the depositor has to retain his liberty to handle them independently. “We have now mobilised two deposits on “unattached basis”. Please accept the following deposits and oblige:— Name of depositor Amount Rs. Lakhs Duration Mr. A.J. Jawad 15.00 120 days Mr. A.J. Jawad 15.00 120 days” This letter is written by the first defendant to the plaintiff. There is absolutely no indication whatever in that letter to show that the amount belongs to the first defendant. On the other hand, there are sufficient indications to show that it belongs to the fifth respondent. But, one important aspect which is stressed by learned counsel for the appellants is that the deposit accepted by the plaintiff bank is ‘No-lien’ deposit on unattached basis. 13. The next letter is written by the fifth respondent in the applications to the plaintiff-bank on 22-7-1994. The relevant portion of the letter is in the following terms:— “My clients Vijayashree Equipments (P) Ltd., have informed me that they are raising funds from third parties for settlement of their dues to your Bank and the above amount of Rs. 3.00 lakhs placed with you in my name is part of such efforts. At this point of time, my clients are advised not to divulge the names of the third parties from whom the funds are being arranged to meet the settlement to be arrived with your Bank.” A perusal of the letter shows that there was a compromise proposal which was being considered as between the plaintiff-bank and the defendants and there was a definite understanding between them that only if the compromise proposal was accepted, the amount being placed with the plaintiff-bank in short term deposit could be adjusted towards the amount due to the plaintiff bank from the first defendant. That is made clear from the following passage in the same letter:— “They had further advised that only after reaching a mutual satisfactory compromise between yourselves and my clients, these third parties who are prepared to help my clients, shall permit them to utilise the amounts so deposited towards the settlement of your dues.” 14. We have already referred to the passages extracted by the learned judge in the letter dated 14-9-1994 written by the first defendant to the plaintiff-bank. Those passages do not show that the first defendant is the owner of the money. It only shows that the first defendant had borrowed the money from the other persons and even then he was not allowed to keep the amount as his own for even a temporary period, which was deposited in the name of the fifth respondent in the applications on the specific understanding that it could be utilised for the discharge of the loan only after the compromise proposal was accepted by the bank. 15. The next letter dated 26-9-1994 written by the plaintiff-bank to the first defendant reads as follows:— “We have been advised by our Head Office that your promotor director Shri Vijaykumar had called on our top Managment on 23.9.94 wherein pending consideration of your request Shri Vijayakumar has agreed as under:— 1. The amount of term deposit of Rs. 30 lakhs standing in the name of Shri A.J. Jawad will be transferred in the name of the company and kept under Banks lien. 2. After sale of shares/properties of the promotors, the company will pay a further sum of Rs. 18 lakhs within 3/4 weeks time. Please, therefore arrange to get the amount of Term Deposit of Rs. 30 lakhs transfered in the name of the company and also arrange to pay further Rs. 18 lakhs as assured by you”. This letter makes it clear that the amount will continue to be in the name of fifth respondent in the applications till the compromise proposal was accepted and there will be a transfer to the bank only thereafter. In reply thereto, the first defendant has written the letter dated 5-10-1994 to the plaintiff. Learned counsel for the plaintiff-bank relies upon the following portions in the said letter:— “Kindly note that during the meeting:— 2. Shri Vijayakumar mentioned to your top management that he would meet the lenders of the deposit amount of Rs. In reply thereto, the first defendant has written the letter dated 5-10-1994 to the plaintiff. Learned counsel for the plaintiff-bank relies upon the following portions in the said letter:— “Kindly note that during the meeting:— 2. Shri Vijayakumar mentioned to your top management that he would meet the lenders of the deposit amount of Rs. 30 lakhs, lying in “No-lien” deposit on his way back to Madras, via Hyderabad, for the purpose of getting their concurrence in transferring the said amount to your companys account in your Bank. However, as the parties were away at Mysore, Shri Vijayakumar could not meet them and has arranged to meet them during the course of this week at Hyderabad. 2. It was also assured to your top management that we would endeavour to sell certain items of jewellery/shares belonging to few friends/relatives etc. As soon as we obtain a competitive offer and realise the proceeds of the sale of the said items, we will transfer the amount to your Bank. The amount indicated was around Rs. 18 lakhs (appx.) which of course will depend on actual realisation. As far as the “MOU” between Rank Aqua Estates Ltd. and Acquamarine Food Products Ltd. is concerned the same was produced to you and Mr. Mathews during June 94 and requested you to maintain confidentiality. Several other formalities pertaining to the transfer of non-transferable shares under “lock-in”, are still to be completed and Rank Aqua Estates are awaiting approval of SCICI and ‘SEBIT etc. etc.” 16. Learned counsel wants us to infer from this letter that the amount belongs to the first defendant as it is pursuance of a transaction between Acquamarine Food Products Ltd. and Rank Aqua Estates Ltd. According to learned counsel, certain rights in Aquamarine Food Products Ltd., which is a sister concern of the first defendant, had been transferred to Rank Aqua Estates Ltd. and in return therefore the amount has been received by the first defendant. We are unable to accept this contention as there is no such indication in the letter whatever. Nor is there any averment to that effect either in the plaint or in the affidavit filed in support of the application for attachment. We are unable to accept this contention as there is no such indication in the letter whatever. Nor is there any averment to that effect either in the plaint or in the affidavit filed in support of the application for attachment. If really it is the case of the plaintiff, it ought to have set out the same either in the plaint or in the affidavit filed in the case, as even according to that letter, the “MOU” between Rank Aqua Estates Ltd. and Acquamarine Food Products Ltd. was produced before the plaintiff and shown to them. The plaintiff must have been aware of the terms of the said MOU and ought to have disclosed the same in the pleadings and made relevant allegations in the regard. Without making any such reference to the same in the pleadings, it is not open to the plaintiff to urge in the appellate court that the MOU referred to in the letter dated 5-10-1994 is the one by which there was a transfer of rights by Acquamarine Food Products Ltd., to Rank Aqua Estates Ltd. 17. In the letter dated 18-11-1994 written by the first defendant to the plaintiff bank, reference is made only to the ‘No lien’ deposit amount of Rs. 30,00,000/- which is to be appropriated after finalisation of compromise proposal and the interest accrued thereon. That letter also reiterates the position that the sum of Rs. 30 lakhs cannot be touched before the compromise proposal is accepted by the bank. The deposits which were originally for 120 days were subsequently renewed for shorter periods and it is stated that there were four such renewals. 18. In May 1995, the fifth respondent in the application wrote a letter to the plaintiff bank calling upon it to signify its firm acceptance of the compromise proposal. It is stated clearly in that letter that if such acceptance was not forthcoming, the deposits would be withdrawn without further renewal. 19. It is seen from the records that the plaintiff had presented the suit even in February 1994 but it did not get it numbered or taken on file till the receipt of the aforesaid letter from the fifth respondent in May 1995. In June 1995, the plaintiff got the suit numbered and also filed Original Application No. 629 of 1995 and Application No. 3064 of 1995 for the reliefs already stated. 20. In June 1995, the plaintiff got the suit numbered and also filed Original Application No. 629 of 1995 and Application No. 3064 of 1995 for the reliefs already stated. 20. Thus, the records placed before the Court do not contain any material whatever to draw an inference that the amount of Rs. 30,00,000/- which is in term deposit with the plaintiff-bank belongs to the first defendant. By no stretch of imagination the fifth respondent in whose name the amounts were deposited can be considered to be a garnishee of the first defendant. It is not as if the fifth respondent or any other person whom he represents, is a debtor of the first defendant or defendants 2 to 4. If at all, the records only make out that those persons to whom the money belong are only the creditors of defendants 1 to 4 and they cannot be considered to be garnishees in any sense of the term. 21. In such circumstances, there cannot be any attachment of the amount which belongs to a third party and not to the first defendant or defendants 2 to 4. 22. Further, the averments contained in the affidavit filed by the plaintiff in support of the application for attachment do not make out a case for granting an order of attachment. There is a vague averment in the affidavit that the secured property will not fetch the suit claim since the respondents have almost closed down their business and secreted all the assets and profits and further encumbered the property rendering the applicant bank incapable of executing the decree later. The plaintiff has not chosen to give any details in the affidavit as to what exactly will be the value of the immovable properties which are the subject matter of the mortgage. Unless and until the plaintiff makes out price facie to the Court that the security for the mortgage is not sufficient to enable the mortgagee to realise the mortgage amount if it is sold, it is not possible for a mortgagee to secure an order of attachment of the other properties. There is no justification whatever for granting attachment of other properties when there are immovable properties furnished as security for the mortgage amount, particularly when there is no averment regarding the value of such properties and that it will be insufficient for realisation of the amounts due to the plaintiff. There is no justification whatever for granting attachment of other properties when there are immovable properties furnished as security for the mortgage amount, particularly when there is no averment regarding the value of such properties and that it will be insufficient for realisation of the amounts due to the plaintiff. 23. It is not necessary for us to consider the other contentions raised by the appellants counsel that the deposits being made in pursuance of a special contract, the plaintiff bank is a trustee for the said deposits and ought to return the same. It is also not necessary to consider the question whether the plaintiff can seek attachment of a deposit which is a ‘No-lien’ deposit. It is enough for us to hold that the evidence does not make out that the amount was owned by the defendants or that the fifth respondent is a garnishee of defendants 1 to 4. That finding is sufficient to set aside the order of attachment as well as the order of injunction granted by the learned single judge. 24. As pointed out already, the learned judge has made a reference to the interim report of the Commissioner and made an observation regarding the conduct of the defendants. We do not find anything in the interim report to warrant making such an observation on the conduct of the defendants. It is seen from the correspondence that the respondents have given their address as No. 15, Venu Reddy Street, Guindy, Madras-32. In the plaint the plaintiff has given another address viz., No. 4, Mohan Kumaramangalam Street, Nungambakkam, Madras-34 as that of defendants 1 to 4. According to the plaintiff, it is the address of the registered office of the first defendant. We cannot now decide whether the address furnished by the plaintiff is correct or not as at present there is no evidence in that regard. Suffice it to point out that the interim report of the Commissioner does not make out any case for drawing an inference against the defendants. As pointed out already, the Commissioner does not say as to when and in which place he attempted to serve notice on the third defendant. Nor does the report say that notices were served on the other defendants before he went to execute the warrant. 25. As pointed out already, the Commissioner does not say as to when and in which place he attempted to serve notice on the third defendant. Nor does the report say that notices were served on the other defendants before he went to execute the warrant. 25. In such circumstances, we have no hesitation to hold that the orders of attachment and injunction passed by the learned judge are unsustainable and require to be set aside. 26. The appeals are allowed. The orders dated 20-11-1995 in O.A. No. 629 of 1995 and Application No. 3064 of 1995 are set aside. The said applications are dismissed. There will be no order as to costs.