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2011 DIGILAW 468 (KAR)

Punjab National Bank v. V. G. Maheshwarappa & Co.

2011-04-21

A.S.PACHHAPURE

body2011
Judgment :- This writ petition is filed under articles 226 and 227 of the constitution of India praying to quash the impugned order dt. 13.11.08, of the Prl. Civil Judge (Jr.Dn.), Davanagere vide Annexure-E passed in Ex-Case No.105/98, with a direction not to proceed against the petitioner, by allowing this WP with costs. The facts in brief relevant for the purpose of this petition are as under: 2. The parties will be referred as per their rank before the Executing Court. The Respondent No.1 herein is the Decree Holder whereas Respondents 2 (a) to (e) are the Judgment Debtors and the petitioner herein is a Garnishee. The Decree Holder initially instituted O.S.No.4/1971 against the Judgment Debtor seeking recovery of an amount of Rs.30,438-17 with interest at 12% p.a., The said suit came to be transferred to the Addl.Civil Judge, (Jr.Dn.), Davanagere and was renumbered as O.S.No.24/1971. In O.S.No.24/1971, the Court passed an order of attachment of Rs.40,000/- from the account of the Judgment Debtor maintained by the petitioner bank. A telegram dated 15.5.1971 was sent to the Bank indicating the attachment. The suit bearing O.S.No.24/1971 was again transferred to the Court of Civil Judge (Jr. Dn.) and was renumbered as O.S.No.32/1975. Thereafter, on 30-01-1979, the suit was dismissed on merits and an appeal was preferred against the dismissed of the suit and the said appeal came to be allowed and the matter was remanded back to the Trial Court. In the circumstances, again the suit was renumbered as O.S.No.457/1997 and under the judgment and decree recovery of the money claimed, was granted and the order of attachment made earlier was made absolute. Thereafter, the Decree Holder filed Execution Case No.105/1998 for the recovery of the decreetal amount as per the decree dated 22.6.1998 in O.S.No.457/1997 and in the circumstances, the Decree Holder sought for an order to transfer the amount of Rs.40,000/- from the petitioner Bank to the Court for payment. Thereafter, a show cause notice was issued to the Bank for not complying the order dated 9.4.2003. The petitioner Bank filed CRP 1854/2003 against the order dated 29.05.2003 in the execution case and the attachment order dated 9.4.2003, was conditionally stayed by this Court in CRP 1854/2003 on deposit of Rs.40,000/-. Thereafter, a show cause notice was issued to the Bank for not complying the order dated 9.4.2003. The petitioner Bank filed CRP 1854/2003 against the order dated 29.05.2003 in the execution case and the attachment order dated 9.4.2003, was conditionally stayed by this Court in CRP 1854/2003 on deposit of Rs.40,000/-. The revision petition was disposed of by setting aside the order of the Executing Court and remitting the matter to the Executing Court with a liberty to the petitioner Bank to putforth its say before the Executing Court. It is under these circumstances that the petitioner Bank filed its objections raising different contentions and stating that an order to call for the amount of Rs.40,000/-cannot be granted. The Executing Court heard the counsel for the parties and on appreciation of the material on record has passed the impugned order directing the petitioner Bank to deposit Rs.40,000/-within 15 days from the date of the order. Aggrieved by the same, the present writ petition has been filed. 3. I have heard the learned counsel for the petitioner and also the respondent. The point that arise for my consideration is: “1. Whether the order directing the petitioner to deposit Rs.40,000/- in pursuance of the attachment order in O.S.No.24/1971 is legal and valid?” 2. Whether the petitioner has made out any grounds to call for any interference? 4. It is not in dispute that after an order of attachment of Rs.40,000/- in O.S.No.24/1971 a telegram was sent by the Executing Court to the Bank on 15.5.1971. It is necessary to refer to the provisions of Order 38 Rule 9, CPC which is extracted hereunder: “9. Removal of attachment when security furnished or suit dismissed. Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.” (underline is mine) So as could be seen from this provision, an order of attachment made by a Court ceases to operate, in case, if the suit is dismissed. Admittedly, the suit which was instituted in O.S.No.24/1971 and later transferred and renumbered as O.S.No.32/1975 came to be dismissed vide judgment and decree dated 30-01-1979 and if the provisions of Order 38 Rule 9 referred to supra are invoked, the order of attachment in the suit ceases to operate and merely because the decree holder had filed an appeal in RA No.28/1989 and that the matter was remitted to the Trial Court and thereafter, the suit was decreed has no relevance, as initially an order of attachment before the judgment ceases to operate with the dismissal of the suit. An appeal against decree of dismissal or an order of remand does not revive the order of attachment before judgment and the subsequent order that has been passed by the Court while decreeing the suit in O.S.No.457/1997 dated 22.6.1998 making an attachment order absolute, has no validity in the eyes of law, as the initial order ceases to operate and there is no question of ceased order being made absolute. 5. The learned counsel for the petitioner would contend that the orders passed under the provisions of Order XXXVIII Rule 9 in case if the suit is dismissed, cannot be revived and on this aspect of the matter, he has placed reliance on the Full Bench decision of this Court reported in AIR 1955 MYSORE 91 (Gangappa v. Boregowda and others) wherein this Court has held as under: “An attachment before judgment which ceased to be in force with the dismissal of the suit will not revive when the decree dismissing the suit is subsequently reversed and a decree in plaintiff’s favour is passed by the same Court or by a superior Court. AIR 1952 Trav-C 414 (FB), Dissented from 33 Mys CCR 97-34 Mys CCR 450 (FB) and 49 Mys HCR 220 held good law; Case law ref.” Furthermore, the question arose before the Apex Court as well in a decision reported in AIR 1982 SC 989 (Sardar Govindrao Mahadik and another v. Devi Sahai and others) wherein, the Apex Court held as under: “The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. If attachment before judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fall.” 6. The same question arose before the High Court of Allahabad in a decision reported inn AIR 1973 ALLAHABAD 67 (FB) (Abdul Hamid v. Karim Bux and others) and it was held by the High Court that the attachment before the judgment automatically ceases and is not revived on the restoration of the suit, which has been dismissed for default. So as could be seen from the principles laid down in the decision referred to supra, when the suit initially instituted in O.S.No.24/1971 subsequently renumbered as O.S.No.32/1975 came to be dismissed by the Court, mere filing of an appeal and remittal of the matter and subsequent grant of the decree will not make a ceased order of attachment before judgment absolute in the eyes of law. 7. The learned counsel for Respondent No.1 relying upon the decision of the Apex Court would contend that so far as the discretion of this Court in the writ petition to interfere with the interlocutory orders, the jurisdiction of this Court is limited under the provisions of Articles 226 and 227 of the Constitution and claims that unless there is an error apparent on the face of the record, this Court cannot entertain the writ petition. Placing reliance on this decision reported in ILR 2003 KAR 3749 (Surya Dev Rai vs. Ram Chander Rai and others) a contention though raised, it is relevant to note that this Court has been invested with the extra ordinary jurisdiction under the provisions of Articles 226 and 227 of the Constitution and as could be seen from para 37 (5) of the judgment, it has been held that if the error is manifest and apparent on the face of the proceedings, such as, when it is based on clear ignorance or utter disregard of the provisions of law or where grave injustice or gross failure of justice has occasioned, a writ of certiorari could be maintained. 8. 8. To consider the scope of the present writ petition, it is relevant to note that Order 38 Rule 9 CPC specifically states that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of he attachment, or when the suit is dismissed. Therefore, the subsequent order after an appeal, remittal of the said appeal back to the Trial Court and the judgment decreeing the suit and making the interim order absolute is contrary to the provisions of Order 38 Rule 9 CPC, in as much as, the order of attachment before the judgment ceased to operate by the dismissal of the suit at the first instance. Though the learned counsel has further relied upon the decision of the Apex Court reported in AIR 2004 SC 3992 (Vareed Jacob v. Sosamma Geevarghese) wherein the order of temporary injunction was granted and the suit came to be dismissed for default, the Apex Court held that on the restoration of the suit, the temporary injunction order automatically revives and there is no necessity to make a specific order. But in Head Note A of the decision, the Apex Court has taken into consideration the different orders under the provisions of Orders 38 and 39 CPC and has held that the Attachment Before Judgment and temporary injunction though are interlocutory orders, the Rules of Attachment Before Judgment cannot be equated with the Rules of temporary injunction. So, as the Apex Court has taken into consideration the interim order relating to the grant of temporary injunction, the said principle cannot be applied to the facts on hand. So viewed from any angle, the facts and principles of law are looked into, the order passed by the Trial Court directing the petitioner Bank to deposit the amount of Rs.40,000/-is both erroneous and illegal and is contrary to the provisions of Order 38 Rule 9 CPC. The Executing Court has not taken into consideration the said provisions and also the decisions referred to supra while disposing the impugned order which is apparently illegal. In that view of the matter, I answer Point No.1 in negative and Point No.2 in affirmative and proceed to pass the following: ORDER The petition is allowed. The Rule is made absolute. The Executing Court has not taken into consideration the said provisions and also the decisions referred to supra while disposing the impugned order which is apparently illegal. In that view of the matter, I answer Point No.1 in negative and Point No.2 in affirmative and proceed to pass the following: ORDER The petition is allowed. The Rule is made absolute. The order dated 13-11-2008 passed by the Executing Court in Ex. Case No.105/1998 is quashed and the Executing Court is directed to proceed against the Judgment Debtor for recovery of the amount under the decree.