M/s. Otarmal Kantilal & Co. v. Ullhas Shankar Naik & Anr.

1. This First Appeal was admitted on 18th April, 2012. None appears for the Respondents today.

2. The Appeal challenges an order dated 19th October, 2011 passed by the City Civil Court in Execution Application No.454 of 2009 in Summary Suit No. 1052 of 2009.

3. The issue which arises in this appeal is whether the garnishee is justified in contending, that the amount lying to the credit of the judgment debtor on the date of warrant of attachment is only required to be paid to the decree-holder or whether any amount subsequent thereto is also required to be paid till the decree is satisfied.

4. The Appellant had filed an original suit against Respondent Nos.[1] and 2 for recovery of certain sum of money. On 07th July, 2009 an ex parte decree was obtained by the Appellant against Respondent Nos.[1] and 2. The decretal amount was Rs.52,205/- with further interest at 14% per annum on Rs.50,000/- from the date of filing of the suit until payment.

5. Respondent No.1 was employed with Respondent No.3 and, therefore, a warrant of attachment came to be issued on 22nd July, 2009 by the Registrar of the City Civil Court, prohibiting Respondent No.3 from making any payment to Respondent No.1 until further orders of the Court and to make over payment to the Appellant in discharge of decree.

6. The warrant of attachment further states that the said warrant to be returned on or before 22nd July, 2010 with an endorsement certifying the date and manner in which it has been executed or why it has not been executed.

7. In the impugned order, the City Civil Court has observed that on the date of receipt of the warrant of attachment only Rs.362/- was available with Respondent No.3 and, therefore, no further amounts which came to be credited in the bank account of Respondent No.1 could be paid over to the Appellant by Respondent No.3. According to the learned Judge, only the amount standing on the date of receipt of warrant of attachment could be handed over to the Appellant. Therefore, the impugned order was passed, rejecting the garnishee notice and disposing of the Execution Application.

8. I have heard Mr. Jain, learned counsel for the Appellant.

9. Admittedly, there is no dispute that the warrant of attachment dated 22nd July, 2009, wherein the decretal amount of Rs.52,205/- plus interest has been specifically mentioned was served on Respondent No.3. Respondent No.3 in its letter dated 28th July, 2009 has accepted the receipt of this warrant of attachment and in this letter, it is specifically mentioned that the decretal amount is Rs.52,205/-, but since the credit balance is only Rs.362/-, they are unable to recover the dues.

10. It is important to note that the warrant of attachment specifically prohibits Respondent No.3 from making any payment until further orders of the Court. Nothing has been shown to me that the warrant of attachment was challenged or there was an order of the Court permitting Respondent No.3 to make payment to Respondent No.1. In the absence of any order from the Court, the prohibition imposed in the warrant of attachment would continue and, therefore, findings of the City Civil Court that only the amount standing on the date of receipt of warrant of attachment can be paid over to the Appellant cannot be accepted.

11. The warrant of attachment specifically further directs Respondent No.3 to return the warrant on or before 22nd July, 2010 with an endorsement certifying the date and manner in which it has been executed and stating why it has not been executed. The period of one year from the date of warrant of attachment is given so that any amount of credited post receipt of the warrant of attachment can be utilized for discharge of the decretal amount. In the statement of account furnished by Respondent No.3, there are credits appearing post receipt of warrant of attachment and that too before 22nd July, 2010. On 25th June, 2010 an amount of Rs.47,053/- is found to be credited in the bank account. The said amount was allowed to be withdrawn by Respondent No.3. The said amount was withdrawn by Respondent No.1 and Respondent No.3 permitted same to be withdrawn inspite of the order of attachment.

12. In my view, permitting such withdrawal during the period when the attachment warrant is in force is contrary to the said warrant and Respondent No.3 was not justified in allowing Respondent No.1 to withdraw the same.

13. It is also important to note that in the impugned order, statement of Respondent No.3 is recorded whereby Respondent No.3 has deposited Rs.22,000/-. If the stand of Respondent No.3 that the amount lying on the date of receipt of warrant of attachment is only to be paid over to the Appellant is accepted, then I fail to understand why Respondent No.3 deposited Rs.22,000/- which was not lying to the credit of Respondent No.1 on the date when the warrant of attachment was received. Therefore, there is contradiction in the impugned order to this extent.

14. Furthermore, an affidavit came to be filed by Respondent No.3 in the Execution Application, wherein again Respondent No.3 agreed to pay Rs.15,709/- to the Appellant. Again, if the stand of Respondent No.3 is to be accepted, then I fail to understand why in this affidavit they agreed to pay over the amount which was not lying to the credit of Respondent No.1 on the date of receipt of the attachment warrant.

15. Therefore, in view of above, in the absence of any challenge to the warrant of attachment, during the period when the warrant of attachment was in operation and based on the conduct of Respondent No.3, the findings given in the impugned order that the amount lying only on the day when the warrant of attachment was received by Respondent No.3 is to be paid over to the Appellant is erroneous and, therefore, the impugned order is required to be quashed and set aside and Appeal is allowed.