V SUDHAKAR Vs. V RAMIAH

JUDGEMENT

(1.) THIS is an application filed under Or. 14, R. 8 of O.S. Rules read with S. 151 C.P.C., praying to set aside the ex parte order dated 26-2 1988 made in Application No. 3070 of 1987 directing the Registrar, City Civil Court, Madras, to transfer a sum of Rs. 30,268. 76p. lying in the credit of O.S. No. 1868/85, City Civil Court, Madras.

(2.) IN the affidavit filed in support of the application it has been submitted that the applicant is the plaintiff in O.S. No. 1868 of 1985 on the file of the VIII Assistant Judge, City Civil Court, Madras, and a decree had been obtained in that suit and Execution petition No. 1854 of 1986 was filed in that suit, and in obedience of the order passed the garnishees have deposited a sum of Rs. 30,268-50. in the credit of the above suit. Thereafter Application No. 2713 of 1987 was filed for obtaining a cheque for the said amount. Meanwhile the judgment-debtor had filed C.S. No. 296 of 1987 along with the application No. 3070 of 1987 wherein the Judgment-debtor's brother has succeeded in obtaining the ex parte orders for transfer of the amount of Rs. 30.263. 50 to the credit of C.S. No. 296/87. The applicant's petition E A. No. 2713/87 for obtaining the cheque which was kept pending is likely to be dismissed. According to him; Application No. 3070/87 is not maintainable, since in the suit O.S. No. 1868/85 as well as in E.P. No. 1854 of 1986, V. Sudhakar was not a party at all and his brother V. Ramaiah is the partner of Vummidi Ramaiah Chetty Guru-samy Chetty and sons and he is the Judgment-debtor in O.S. No 1868 of 1985.

(3.) IT may also be relevant to point out that the respondent herein who filed Application No. 3070 of 1987 in C.S. No. 296 of 1987 to send for the amount had filed E.A. No. 3537 of 1985 under O. 21, R. 58, r/w S. 47 and 151, C.P.C., claiming the said amount in the Execution petition before the City Civil Court and subsequently there had been a compromise entered into wherein it has been stated that the claim-applicant had no objection for the decree-holder to attach the licence fees of Rs. 4700 payable by the 7th Garnishes, Tamil Nadu Handlooms to him mentioned in the pro-order till the disposal of E.P. No. 2011/85 along with the future interest and the decree-holder agreed that the licence fees of other shops mentioned in the pro-order to be raised. The present respondent has not disclosed the said compromise order thereby depriving the applicant realising of the amount. IT may also be pointed out that after the suit O.S. No. 1869 of 1985 was decreed, the attachment made in I.A. No. 4897 of 1935 had been made absolute. They were so made long before the filing of the suit C.S. No. 296/87. The attachment was made absolute on 9-7-1985. Subsequently, as stated earlier, E.A. No. 3538/85 has been filed and that application ended in compromise. So without reference to the order passed in the Claim Petition the amount held in deposit in the suit O.S. No. 1868/85 has been directed to be deposited into this Court to the credit of C.S. No. 296/87. Having regard to the decree obtained by the applicant against the partner of Vummidi Ramaiah Chetty, Gurusamy Chetty and Sons, whose liability is not disputed by the respondent also in Application No 3070 of 1987 and inasmuch as the attachment had been made absolute, I find that the ex-parte order that had been passed in Application No. 3070 of 1987 is liable to be set aside.