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2010 DIGILAW 175 (KER)

Sub Treasury Officer v. George

2010-02-25

P.BHAVADASAN

body2010
JUDGMENT : P. Bhavadasan, J. This Writ Petition is directed against the order of the learned Sub Judge, Thodupuzha directing the Sub Treasury Officer, Thodupuzha to deposit an amount of Rs. 6,72,712/- in the excise duty account maintained in the Treasury before the Court. 2. Two questions arise for consideration in this Writ Petition. First is that the petitioner claims that he cannot be treated as garnishee, as he is not the custodian of the amount and the custodian is the Commissioner of Excise. It is pointed out that the duty of the petitioner is only to maintain the account and he has no authority to disburse or pay any amount from the said account. Therefore, he cannot be treated as garnishee. The second contention taken is that in view of O.XXI R.52 of the C.P.C., which provides attachment of property in custody of Court or public officer, it is not possible to invoke O.XXI R.46 of the C.P.C. 3. Order 21 R.46 is popularly known as garnishee proceedings. O.XXI R.46A enables the Court to issue notice to the garnishee, calling upon him either to pay into the Court the debt due from him to the judgment-debtor or to appear and show cause as to why he should not do so. In the case on hand the petitioner had pointed that he is not garnishee and he is not empowered to disburse the amount, since the custodian of the amount is Commissioner of Excise. On two occasions the petitioner sought time from the Court in this regard. It is seen that the Court below directed the garnishee under O.XXI R.46B to deposit the amount. 4. The above direction does not appear to be correct. When the petitioner appeared and pointed out that he cannot be treated as a garnishee in respect of the amount in question, the Court below ought to have conducted an enquiry under O.XXI R.46C of the C.P.C. and it is only thereafter O.XXI R.46B would have been resorted to. 5. It was incumbent on the part of the Court below to determine the disputed issue, as contemplated under O.XXI R.46C of the C.P.C., before directing amount to be deposited. This aspect has to be considered by the Court below. While doing so, the Court below has also to consider the impact of O.XXI R.52 of the C.P.C. 6. 5. It was incumbent on the part of the Court below to determine the disputed issue, as contemplated under O.XXI R.46C of the C.P.C., before directing amount to be deposited. This aspect has to be considered by the Court below. While doing so, the Court below has also to consider the impact of O.XXI R.52 of the C.P.C. 6. In the result, this Writ Petition is allowed and the impugned order is set aside. The Court below is directed to re-consider the matter and to decide as to whether the petitioner could be treated as garnishee. The Court below shall also consider the impact of O.XXI R.52 of the Civil Procedure Code. The Court below shall make every endeavour to dispose of the matter within three months from the date of receipt of copy of this order.