BALARAMAN Vs. VARADAMMAL

JUDGEMENT

(1.) The petitioner is one of the sons of the judgment-debtor (1st respondent in E.P.No.643 of 1984, X Asst. Judge, City Civil Court, Madras) and 3rd respondent in that execution petition. The respondent decree holder obtained a decree for maintenance in O.S.No.7927 of 1976 against her husband, Narayanan. The decree also provided a charge over the property No.91, Venkatarangam Pillai Street, Triplicane, Madras. The said execution was laid against the legal representatives of her husband, viz., his three sons and a daughter, as the judgment debtor passed away in the meanwhile. The amount claimed is Rs.18,384.10 after giving credit to the payment of Rs.20,300. In the execution a sum of Rs.36,000 standing to the credit of the judgment-debtor and his son, the petitioner, in Punjab National Bank, Triplicane, Madras was sought to be attached by issue of a prohibitory order to the bank. All the petitioner's objections were rejected by the Court below and execution was ordered. Hence, this revision.

(2.) The same grounds are urged even here. The first is that when there is a charge decree, the decree-holder is not entitled to proceed against other assets of the judgment-debtor in the hands of his legal representatives without exhausting her remedy against the charged property. Such a contention is hardly tenable in the teeth of the directions contained in the decree. The decree directed that the defendants do pay the plaintiff at the rate of Rs.400 per month from the date of suit towards maintenance and that the plaintiff be at liberty to charge the suit property for the due payment of the maintenance amount. The rest of the decree is omitted as not germane for the present purpose. Unlike a mortgage decree which specifically provides that the decree-holder should proceed against the hypotheca and should there be any shortfall, the decree-holder can proceed against the judgment-debtor personally, this decree enabled the decree-holder to execute it personally against the judgment-debtor in the first instance and if it was not possible to realise the decree debt, the decree-holder is entitled to proceed against the charged property.

(3.) The second objection is that as the deposit is in the joint names of the petitioner, and the judgment-debtor, It is not attachable. This contention is not at all sound. Order 21, C.P.Code, visualises attachment of the right title and interest of the judgment-debtor in any property, both moveable and immovable. If such a contention were to be accepted, it will lead to disastrous results. For, no interest other than full ownership will be attachable. But, as already pointed out, by me, tha is not the law. Indeed, Order 21, rule 46 provides that in the case of movable property other than a debt, or a share, the attachment shall be made by a written order prohibiting the person in possession of the same from giving it to the judgment-debtor. The passage in Tenant's Banking Law and Practice in India, 14th Edition relied on by the petitioner points out that in the case of a deposit in joint names, it is open to the Bank to apprise the same to the Court and to take appropriate directions as to the exact amount to deposited. The learned author has not gone to the extent of expounding proposition that the Court cannot attach under Order 21, rule 46, C.P.Code, a sum standing to the joint names of judgment-debtor and another. The passage relied on is at page 151 and it is as follows: