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2000 DIGILAW 189 (KER)

G. C. D. A. v. Harrisons Malayalam Ltd.

2000-03-24

ARIJIT PASAYAT, K.K.USHA, K.S.RADHAKRISHNAN

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Judgment :- Arijit Pasayat, C.J. Entertaining doubt about correctness of view/conclusions arrived at by a Division Bench in Mohammed Hariss v. Fathima (1993(1) KLT 558) as regards the scope of O.38 R.5 of the Code of Civil Procedure, 1908 (in short 'C.P.C.') vis-a-vis 0.21 R.46 thereof in a given factual background, learned Single Judge has made reference to larger Bench. 2. A brief reference to the factual aspects would suffice. M/s. Harrisons Malayalam Ltd. (hereinafter referred to as the 'plaintiff') had filed O.S. No. 713 of 1998 before the Subordinate Judge's Court, Ernakulam. Plaintiff filed the suit for recovery of money from M/s. Hindustan Steel Works Construction Ltd. (hereinafter referred to as 'defendant'). On an application, I.A. No. 6424 of 1998, filed by the plaintiff under O.38 R.5 CPC, O.21 R.46 r/w. S.151 CPC there was an order of attachment of Rs. 7 Crores from the Greater Cochin Development Authority (hereinafter referred to as the garnishee). Learned Subordinate judge passed an order on 23.12.1998 prohibiting the garnishee from making any payment to the defendant. Notwithstanding this order payment of Rs. 50 lakhs was made by the garnishee to the defendant. LA. No. 1708 of 1999 was filed by the plaintiff for a direction to the garnishee, in terms of O. 21, R.46, to deposit Rs. 50 lakhs in Court. The garnishee was required to deposit in Court Rs. 50 lakhs or such other amounts they have paid to the defendant after the order of attachment was served on it. 3. The garnishee admitted that after the order of attachment, the defendant received Rs. 50 lakhs from it. In the counter affidavit filed, garnishee raised several contentions. Firstly it was submitted that the order of attachment received by the garnishee did not reach the finance department and money was not released to the defendant to the extent of Rs. 50 lakhs in April, 1999. The defendant suppressed the order of attachment from the garnishee. When the garnishee noticed the mistake, it requested the defendant to pay back the amount. On receipt of the letter the defendant paid the plaintiff Rs. 21,81,000/-. The garnishee was persuading the defendant to pay the balance amount. Therefore the request was to direct the defendant to deposit the balance amount of Rs. 28,19,000/- in Court. When the garnishee noticed the mistake, it requested the defendant to pay back the amount. On receipt of the letter the defendant paid the plaintiff Rs. 21,81,000/-. The garnishee was persuading the defendant to pay the balance amount. Therefore the request was to direct the defendant to deposit the balance amount of Rs. 28,19,000/- in Court. The learned First Additional Sub judge, before whom the suit is pending, passed an order directing the garnishee to deposit in Court Rs. 50 lakhs out of Rs. 7 crores attached, within 7 days. The order was challenged in C.R.P. No. 1566 of 1999. When the matter was taken up, the learned Single Judge entertained doubt about the correctness of finding of the Division Bench in Mohammed Hariss's case (supra), which held that the attachment order in cases of attachment before judgment has to be in Form No. 5 (Appendix-F) and otherwise invalidity is attached especially when under 0.38 R.7 the attachment even in cases where it is ordered before judgment has to be considered as one for attachment in execution. Referring to proviso to 0.38 R.11 A, it was concluded that the provisions under 0.21 will apply to 0.38 also. It was felt that as there is separate procedure prescribed for issuing orders to garnishees under 0.21 R.46 C.P.C., the position stated by the Division Bench needs a fresh look. 4. We shall first deal with correctness of view expressed in Mohammed Hariss 's case. In the factual position of that case it was observed that merely passing an order in terms of sub-r.(1) of R.5,0.38 CPC without serving it on the defendant cannot be treated as substantial compliance with the statutory requirement. It was further observed that Form No. 5 has to be used when order of attachment is passed. Reference was made to an earlier Full Bench decision of this Court in Madhavan v. State (AIR 1966 Ker. 212), where it was held that noncompliance with the provisions of 0.38 R.5(1) CPC only makes the order voidable and until that is done, it is operative and cannot be ignored or collaterally attacked. It was also held that even though the attachment is erroneous and liable to be set aside in appropriate proceedings, the order of attachment is one made with jurisdiction and is not a nullity. Sub-r.(4) to R.5 of 0.38 was subsequently inserted. It was also held that even though the attachment is erroneous and liable to be set aside in appropriate proceedings, the order of attachment is one made with jurisdiction and is not a nullity. Sub-r.(4) to R.5 of 0.38 was subsequently inserted. The objects and reasons for inserting sub-r.(4) were as follows: "Clause 88 - Sub-clause (ii) - There is a divergence of opinion between the High Courts as to whether an attachment made before judgment without complying with the procedure specified in R.5 is a nullity or is voidable. R.5 is intended for the protection of the person whose property is sought to be attached before judgment. If he does not receive the notice required by law and is thus denied the opportunity of preventing the attachment by the offer of security, an injustice would accrue to him. R.5 is, therefore, being amended to clarify that, where the attachment is made without complying with the procedure laid down in R.S, such attachment shall be void". After insertion of sub-r.(4), an attachment made before judgment without complying with the procedure specified in R.5 is void and not merely voidable. In otherwords, according to this sub-rule the Court may direct the defendant either to furnish security or to produce the property or the value of the same or to appear and show cause why he should not furnish security. It is made clear that if an order of attachment is made without complying with these provisions, such attachment shall be void. 5. The only question in relation to 0.38 R.5 which needs to be considered is whether any defect in a notice with Form No. 5 (Appendix F) would render the order of attachment void. There is no reference to the form in O.38 R.5. Use of forms in the appendices is dealt with in O.48 R.3. Same reads as follows: "0.48 R.3: Use of forms in appendices: The forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purpose therein mentioned." The provision itself provides that the forms given, with such variations as the circumstances of each case may require, shall be used. Forms contained in the appendices to the Code do not form part of the Code. It is sufficient if there is substantial compliance with the forms. Forms contained in the appendices to the Code do not form part of the Code. It is sufficient if there is substantial compliance with the forms. All rules of Court are nothing but provisions intended to secure proper administration of justice. It is therefore essential that they should be made to serve and be subordinate to that purpose. Procedure is handmaid and not the mistress of law intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Any clerical or non-substantial error in the form which does not dilute the substance or the contents would not make it void. Otherwise substance would yield to form which is never the intention of law. Issuance of notice in a particular form is a matter of procedure. But that question is really of academic interest in the present case as we are concerned with the role of garnishee as provided in 0.21 R.46 CPC. The extent of objection that can be raised by the garnishee or the stand that can be taken by it is clearly mentioned in the provision itself. Therefore, the garnishee cannot question or raise a dispute beyond what has been specifically provided in 0.21 R.46 and connected provisions. 6. It is to be noted that by Kerala Amendment by Notification No. 23 dated 9.6.1969, the provisions in R.46A to I have been inserted in 0.21 R.46. 7. So far as the factual aspects are concerned, the learned Single Judge has to take a decision by applying the guidelines indicated by us above. If any of the stands of the garnishee falls within the framework indicated by us, the same shall be considered by the learned Single Judge in its proper perspective. Reference is accordingly answered.