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2011 DIGILAW 110 (AP)

Shriram Chits Private Ltd. v. V. Govinda Swamy

2011-02-09

N.R.L.NAGESWARA RAO

body2011
ORDER This Civil Revision Petition IS filed against the order dated 07.09.2010 in O.E.P.No.117 of 2010 in O.S.No.260 of 2005 on the file of the Additional Senior Civil Judge, Tirupati in dismissing the petition filed under Order XXI Rule 11(3) of Civil Procedure Code (for brevity “CPC’) seeking attachment benefits. 2. The decree-holder obtained a decree against the judgment debtors 1 to 4 for recovery of amount due under a chit transaction. The suit was decreed on 03.01.2007. Thereafter E.P.No.93 of 2010 was filed for attachment of salaries of the judgment-debtors 1 to 4 and an application under Order XXI Rule 22 of CPC was filed and it was pending. While the matters stood thus, the present E.P. No.117 of 2010 was filed, as a simultaneous execution petition, to attach the salary and retirement benefits of the judgment-debtor No.2. Permission was granted by the Court in E.A.No.313 of 2010 to take simultaneous execution on 16.08.2010. 3. The judgment-debtor appeared before the lower Court and filed counter contending that the application is not maintainable and the 2nd judgment-debtor is still working in Forest Department and since the judgment-debtor and the garnishee are' residing outside the jurisdiction of the Court, which passed the order of attachment, the Court has no jurisdiction and, therefore, the Execution Petition is liable to be dismissed. 4. Considering the objections raised by the said judgment-debtor, the learned Additional Senior Civil Judge, Tirupati found that the simultaneous execution cannot be taken and also relying upon a decision of this Court in Aditya Electronics, Hyderabad v. A.S.Impex Ltd., New Delhi (1) 2004 (4) ALT 50 = 2004 (2) ALD 779 , held that since the judgment-debtor and the garnishee are residing at Piler, which is outside the jurisdiction of the executing Court, the attachment cannot be granted. Aggrieved by the said order, the present revision is filed. 5. Learned counsel for the petitioner was permitted to take notice personally to 2nd respondent and proof of service of notice is filed before this Court and nobody appeared. 6. The point for consideration is whether the order of the learned Additional Senior Civil Judge, Tirupati is legal and sustainable? POINT: 7. So far as the question of simultaneous execution is• concerned, evidently, the Execution Petition was filed after taking permission from the Court in E.A.No.313 of 2010. 6. The point for consideration is whether the order of the learned Additional Senior Civil Judge, Tirupati is legal and sustainable? POINT: 7. So far as the question of simultaneous execution is• concerned, evidently, the Execution Petition was filed after taking permission from the Court in E.A.No.313 of 2010. When the Court has granted permission and when the power is not denied, the Execution Petition cannot be said to be not maintainable, though the lower Court expressed a doubt about it. So also, so far as the attachment of the salary and other benefits of the judgment-debtor, and also the garnishee, who are said to be residing outside the jurisdiction of the Court, are concerned, the decision in Aditya Electronics, Hyderabad v. A.S.Impex Ltd., New Delhi (1 supra), has no application, since it relates to debts, which are to be attached belonging to the judgment-debtor, which are available with the garnishee. So far as the attachment of salary is concerned, Order XXI Rule 48 of CPC clearly empowers the Court to attach the salary or allowances of a Government servant, whether the judgment-debtor or the Disbursing Officer is or is not within the local limits of the jurisdiction of the Court and the only limitation is that it should be done subject to the provisions of Section 60 of CPC. Therefore, when such power is provided under Order XXI Rule 48 of CPC, particularly with regard to the salaries, the decision relied on by the lower Court cannot have any application to this case. But, in this case, the earlier E.P.No.93 of 2010 is pending and the objections, if any, under Order XXI Rule 22 of CPC have to be decided by the Court, as it is mandatory and, therefore, after considering the objections in the above E.P.No.93 of 2010, further steps can be taken in the Execution Petition and the dismissal of the Execution Petition on the grounds mentioned by the learned Additional Senior Civil Judge, Tirupati is not proper. If there are any tenable objections for execution under Order XXI Rule 22 of CPC, the further steps with regard to the attachment of the salary and the benefits, shall be considered and necessary orders to be passed. The dismissal of the application on the ground that the judgment-debtor and the garnishee are residing outside the jurisdiction and, therefore, the Execution Petition does not lie, cannot be sustained. 8. The dismissal of the application on the ground that the judgment-debtor and the garnishee are residing outside the jurisdiction and, therefore, the Execution Petition does not lie, cannot be sustained. 8. Accordingly, the Civil Revision Petition is allowed by setting aside the order dated 07.09.2010 passed in O.E.P.No.117 of 2010 in O.S.No.260 of 2005 and the matter is remanded to the lower Court for consideration afresh as per the observations made in this order. No costs.