SUB TREASURY OFFICER, THODUPUZHA Vs. M.L. GEORGE

JUDGEMENT

(1.) This Writ Petition is directed against the order of the learned Sub Judge, Thodupuzha directing the Sub Treasury Officer, Thodupuzha to deposit an amount of Rs. 6,72,712/- in the excise duty account maintained in the Treasury before the Court. Two questions arise for consideration in this Writ Petition. First is that the petitioner claims that he cannot be treated as garnishee, as he is not the custodian of the amount and the custodian is the Commissioner of Excise. It is pointed out that the duty of the petitioner is only to maintain the account and he has no authority to disburse or pay any amount from the said account. Therefore, he cannot be treated as garnishee. The second contention taken is that in view of O. XXI R. 52 of the C.P.C., which pro vides attachment of property in custody of Court or public officer, it is not possible to invoke O. XXI R. 46 of the C.P.C.

(2.) Order XXI R. 46 is popularly known as garnishee proceedings. O. XXI R. 46A enables the Court to issue notice to the garnishee, calling upon him either to pay into the Court the debt due from him to the judgment-debtor or to appear and show cause as to why he should not do so. In the case on hand the petitioner had pointed that he is not garnishee and he is not empowered to disburse the amount, since the custodian of the amount is Commissioner of Excise. On two occasions the petitioner sought time from the Court in this regard. It is seen that the Court below directed the garnishee under O. XXI R. 46B to deposit the amount.

(3.) The above direction does not appear to be correct. When the petitioner appeared and pointed out that he cannot be treated as a garnishee in respect of the amount in question, the Court below ought to have conducted an enquiry under O. XXI R. 46C of the C.P.C. and it is only thereafter O. XXI R. 46B would have been resorted to.