Andhra HC (Pre-Telangana)
J. Balakrishna vs United Bank Of India And Anr. on 8 June, 1999
Equivalent citations: 1999(4)ALD22, 1999(4)ALT65, [1999]97COMPCAS911(AP)
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
ORDER
1. The plaintiff-first respondent-Bank instituted a suit against the second respondent herein in OS No.164 of 1991 in the Court of the Additional Subordinate Judge, Tirupathi for recovery of certain amounts. During the pendency of the suit, two applications were filed by the plaintiff-1st respondent herein bearing 1A Nos.944 and 945 of 1991.
2. IA No.944 of 1991 was filed by the plaintiff-Bank under Order 38, Rule 5 of CPC for attachment of schedule mentioned immovable properties of the respondent Nos.2 to 21 herein. The learned Judge by an order dated 16-2-1994 made interim attachment absolute which was granted on 2-8-1991. Aggrieved by the aforesaid order, CRPNo.2097 of 1994 has been filed.
3. The plaintiff-1st respondent herein filed IA No,945 of 1991 in the same suit with a prayer to issue prohibitory order attaching the amounts due to the defendant second respondent herein in the hands of the respondents 2 to 21 preventing them from making the payment and to direct them to deposit the amount into Court to the credit of the suit. The learned Judge by an order dated 16-2-1994 made the order dated 24-7-1991 absolute. Aggrieved by the said order, the 18th respondent-petitioner herein has filed CRP No.2098 of 1994.
4. The learned Counsel appearing on behalf of the revision petitioner submitted at the Bar that as a matter of fact respondent Nos.3 to 22 and the petitioner herein were not impleaded as party defendants when the suit was filed by the plaintiff-Bank against the second respondent herein viz., M/s. Bright Constructions, Tirupathi. The second respondent herein had obtained overdraft facility for his business from the first respondent herein. When the 2nd respondent herein did not repay the amount, the first respondent filed OS No.164 of 1991. The petitioner herein and respondent Nos.3 to 22 herein had nothing to do with the overdraft facility obtained by the 2nd respondent herein from the first respondent. Inspite of this position, IA No.945 of 1991 was filed in the above suit by the Bank with a prayer to attach the amount payable by the petitioner and respondent Nos.3 to 22 herein to the second respondent. There was no decree in favour of the first respondent and therefore the money in the hands of third party could not have been attached under Order 38, Rule 5 of CPC.
5. The learned Counsel Mr. O. Manohar Reddy further submitted at the Bar that the petitioner herein and respondent Nos.3 to 22 herein were added in the IAs, when they were not added as party defendants in the suit. The procedure adopted by the first respondent herein i.e., the plaintiff-Bank, and the order passed by the learned Judge thereon are totally illegal and they have to be set aside.
6. I heard the learned Counsel for the petitioner and also the learned Counsel for the 1st respondent.
7. The Counsel for the first respondent herein was not able to justify and support the impugned orders. This Court is of the considered view that the attachment under Order 38, Rule 5 of CPC cannot be ordered against the third party. The attachment before judgment has to be ordered against the defendant only on certain conditions being satisfied. There is no procedure prescribed in impleading the additional parties in both the IAs., when they were not added as parties in the suit.
8. The money in the hands of third party also cannot be attached as a garnishee (debtor's debtor) unless a decree is passed in the suit. Such money can only be attached in execution proceedings and not in pendency of the suit. Therefore, this Court holds that both the orders in the IAs., are totally illegal and uncalled for. This Court is of the considered view that the learned Judge has not followed the simple legal principles. Hence, both the orders passed in the IAs., are set aside.
9. The plaintiff-Bank has filed the above two fictitious and legally wrong interim applications with illegal prayers. Therefore, the 1st respondent herein is directed to pay a sum of Rs.200/- each to the petitioner herein and respondent Nos.3 to 22 herein by way of compensatory costs. The said costs is required to be paid within a period of two weeks from the date of receipt of this order.
10. The Office is directed to communicate this order to the trial Court. In case, the costs is not deposited by the 1st respondent herein as directed above, they will be inviting the action against them under Contempt of Courts Act.
11. The Office is further directed to send the copy of this order to the learned Judge by name.
12. With these directions, both the CRPs., stand allowed. No costs.