L. Narasimha Reddy, J.@mdashThe 1st Respondent filed O.S. No. 60 of 2000 in the Court of the Principal Senior Civil Judge, Vijayawada, against the 2nd Respondent, for recovery of certain amount. He filed I.A. No. 347 of 2000 under Order -XXXVIII, Rule - 5 CPC with a prayer to direct attachment of the amounts that are available with M/s. A.P. Vikalangula Co-Operative Corporation, 6th Floor, Chandravihar, Nampally, Hyderabad (for short ''Garnishee''). It was pleaded that an amount of Rs. 2,60,000/- payable to the 2nd Respondent was available with the Garnishee. The trial Court passed an order on 01-03-2000 directing attachment of an amount of Rs. 2,60,000/-and the same was made absolute on 13-03-2000. The suit was decreed ex parte on 12-07-2000.
2. The 1st Respondent filed E.A. No. 305 of 2000 u/s 151 CPC with a prayer to send for the amount that was lying with the Garnishee, to the Executing Court. The application was ordered on 20-07-2000 and the same was served on the Garnishee on 31-07-2000. This was followed by filing of EA No. 47 of 2002 for complying with the garnishee order. It was found that despite the order of attachment and specific directions for sending the amount, the Garnishee paid the amount to another creditor of the 2nd Respondent. Therefore, the 1st Respondent filed EA No. 133 of 2002 under Rule - 46B of Order - XXI read with 151 CPC with a prayer to send the Appellants herein, to civil prison for contempt of court, committed by them. The Appellants worked as Deputy Director and Accountant, respectively, of the Garnishee at the relevant point of time. They opposed the application by filing a counter. The Executing Court allowed the EA through its order dated 14-10-2003. Hence, this revision.
3. Sri A.S.C. Bose, learned Counsel for the Appellants, submits that the application was not maintainable particularly against the Appellants, who were not at all Garnishees. He contends that the only relief the 1st Respondent could have prayed for under Rule - 46B of Order - XXI CPC was to pass a decree against the Garnishee and it is not at all in the contemplation of that Rule to direct arrest and civil imprisonment of the Garnishee himself, not to speak of third parties.
4. Sri Nimmagadda Satyanarayana, learned Counsel for the 1st Respondent, raised an objection as to the maintainability of the appeal. He submits that the Appellants were very much associated with the Garnishee and deliberately they have flouted the Garnishee order passed by the trial Court.
5. The objection raised by the learned Counsel for the Respondents as to maintainability of the appeal needs to be considered first. It is no doubt true that an order passed in an application filed under Rule - 46B of Order - XXI is treated as a decree and Rule - 46H directs that a regular appeal can be maintained against it. The present appeal is filed under that provision. Obviously, because of lack of clarity as to whether an appeal presented under that provision has to be treated as regular appeal or as miscellaneous appeal; the Registry numbered it as miscellaneous appeal. It cannot be said to be a serious irregularity, once the correct provision of law is invoked.
6. The second objection is as to the forum. If one takes into account, the value of the appeal, the District Court was the proper forum at the relevant point of time. However, at this stage, it is not advisable to return the papers. Further, it is always competent for a Court having a superior pecuniary jurisdiction, to deal with the matters, which are otherwise to be heard by a Court of inferior pecuniary jurisdiction. Therefore, the objection raised in this regard is also overruled.
7. It is not in dispute that the Appellants did not figure as Garnishees, at any stage in the proceedings. The garnishee order was obtained against the A.P. Vikalangula Co-Operative Corporation. The mere fact that the Appellants were functioning as its officials does not provide justification for the 1st Respondent to implead them in their individual capacity. Therefore, EA No. 133 of 2002 was untenable from the point of view of the array of parties.
8. There is a serious defect as to the contents of the application also. As mentioned above, it was filed under Rule - 46B of Order - XXI Code of Civil Procedure. The provision reads as under:
46B. Order against garnishee - Where the garnishee does not forthwith pay into Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice, and on such order, execution may issue as though such order were a decree against him.
9. From this, it becomes clear that the only relief that can be claimed in an application under it, is the one of obtaining a decree against the Garnishee, and on its failure to comply with the directions of the Court, the maximum that an Executing Court can do, is to pass a decree. The result would be that though the Garnishee is not a party to the dispute between the Decree Holder and the judgment Debtor, he won''t suffer a decree independently on account of its acts and omissions. If any doubt exists as regards this, Rule - 46C makes this clear. It reads as under:
46C. Where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such order or orders as it deems fit:
Provided that if the debt in respect of which the application under Rule 46A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate, and thereupon the Court of the district Judge or any other competent Court to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in the Court.
10. In a way, the enquiry contemplated under Rule - 46B of Order - XXI CPC is akin to the one under Rule - 58 of Order - XXI Code of Civil Procedure. It is comparable to the one in a suit. No where in the enforcement of garnishee orders, the arrest of a Garnishee is provided for. Viewed from any angle, the order under appeal cannot be sustained.
11. The appeal is, accordingly, allowed and the order dated 14-10-2003 in EA No. 133 of 2002 passed by the Principal Senior Civil Judge, Vijayawada is set aside. It is however, left open to the 1st Respondent to proceed against the Garnishee. There shall be no order as to costs.
