M. SARASWATHI ACHI Vs. CHITRALAYA PICTURES PVT. LTD.

JUDGEMENT

(1.) This is yet another instance to show how a Judge in the City Civil Court, Madras acts and how he understands the provisions of the Civil Procedure Code. Elementary principles as to what is an issue and what has to be done when the Legislature mandates a Court to determine an Issue have net been borne in mind by this Judge. A petition for attachment of certain moneys in the hands of the respondent as garnishee was taken in the year 1972. That was in E.P. No. 365 of 1972. Then the garnishee -respondent did not file any counter affidavit denying that it had no amount belonging to the judgment -debtor in its hands. Thereafter, the order was made absolute on 15th March 1972. In spite of the fast that such an order, which was an order which could fee passed by a competent court, was passed and remained unchallenged for nearly a year thereafter, the garnishee did not take any steps to comply with the order passed against it. This, therefore, necessitated the decree -holder to file the present petition E.P. No. 2012 of 1972 on the file of the City Civil Court, Madras, for a direction to the garnishee to bring the amount, already attached in E.P. No. 365 of 1972 and said to be with it but belonging to the judgment -debtor, to court. It is necessary at this stage to state that there was a direction by this Court on an earlier occasion in the very same proceedings wherein it was made clear that if the garnishee disputes the liability, an enquiry as contemplated under Or.21, R.46 -C, C.P.C. has to be held by the Executing Court. When a petition, as already stated, to bring the amount to Court, after the order of attachment of the moneys in the hands of the garnishee had become final, was filed, the garnishee filed Exs.R1 and R2 and did not plead otherwise excepting through affidavits filed by it. Ex.R1 is an agreement between the garnishee and the judgment -debtor. Ex.R2 is a self -serving statement of account prepared by the garnishee to show that on the date when it was called upon to bring the amount as required in the present petition E.P. No. 2012 of 1972, it had no moneys with it. Ex.R2 gained acceptance with the Court below who characterised the said document as clinching in establishing that no amount was available with the garnishee as if belonging to the judgment -debtor. On that bait, the lower Court thought that no question of sending for any amount as if due by the garnishee to the judgment -debtor would arise and it dismissed the present execution petition also. It is against that the present Civil Revision Petition has been tiled. Mr. Shanmukham, learned counsel for the petitioner, after inviting my attention to the scope and content of Or. 21, R. 46 -C, C.P.C. says that there was no adjudication on the issue whether any amount was due by the garnishee to the judgment -debtor and that issue which is a relevant issue which has to be enquired into under the prescribed norms as set out in Or.21 R.46 -C, C.P. Code has not been attempted by the Court below.

(2.) He, therefore, complains that the order suffers from a material irregularity. Mr. Varadachari, on the other hand, appearing for the respondent, would still rely upon Ex.R2. According to him, account books in support of Ex.R2 were available on the date when the matter was enquired into by the Court below. What prevented the garnishee to speak about the correctness of the self -serving statement Bx.R2 is not clear. The question is whether the Court has discharged its legal duty as contemplated under Or. 21, R. 46 -C, C.P.C.

(3.) It is only by an amendment by Amending Act 104 of 1976, sub -Rules 46 -A to 46 -I were introduced and made part of the Civil Procedure Code. Rule 46 -C of Or. 21 in the main runs as follows: