CHIEF TREASURY OFFICER Vs. PRADEEP PHARMA

JUDGEMENT

(1.) In both the abovementioned civil revisions filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code), a common question is involved and the question is as to whether a Chief Treasury Officer is a garnishee, (as referred to in Rules 46A to 46G of Order XXI of the Code), qua the sums allocated to an Administrative department of the Secretariat or to the Heads of departments or to Head of the offices etc., in a relevant Head or Sub-Head of the Account. Therefore, these revisions are being disposed of by this common judgment and order. The relevant facts giving rise to these revisions are as under :

(2.) The opposite party No. 1, M/s Pradeep Pharma, filed two civil suits No. 87 of 1999 and 88 of 1999, against opposite parties No. 2 to 5 in the Court of Civil Judge (Senior Division), Etawah and succeeded in obtaining decrees on 26.10.1999, for recovery of money. While the decree passed in Suit No. 87 of 1999 was for recovery of Rs. 14,51,525, the decree passed in the other suit was for recovery of Rs. 4,09,500, together with interest @ 6% per annum. The decree-holder got these decrees transferred for execution, to the Court of Civil Judge (Senior Division), Mohanlal ganj, Lucknow. Two execution cases being No. 21 of 2000 and 22 of 2000 were registered in the transferee court. On 14.5.2001, the executing court attached the amounts so allocated to the Director Ayurvedic and Unani Services U. P., through Grant No. 33 in Major Head Account 2210 (Medical and Health Services Non-Plan), by prohibiting the Chief Treasury Officer, Lucknow from making payment to opposite party No. 3. The Chief Treasury Officer, Lucknow wrote back on 29.5.2001, informing the Court that the total amount in all the heads of Accounts of the opposite party No. 3, was 13,72,824 only and the same would remain attached as directed by the Court. It appears that the State of U.P. filed objections under Section 47 of the Code saying that the decree was void in view of certain orders passed by this Court in a writ petition, relating to "Ayurvedic Scam", but the executing court was not convinced and it rejected the same vide order dated 25.1.2003. The court issued notice purporting to be under Rule 46A of Order XXI of the Code, to the revisionist directing him to make the attached amount available to the Court. The revisionist showed his inability in absence of presentation of proper bill, signed by drawing and disbursing officer for withdrawing the amounts from the said account. While all this was going on, the decree-holder filed a Writ Petition No. 4973 of 2003, which this Court disposed of vide order dated 29.9.2003, directing the executing court to expedite the disposal of execution cases. This AWC 102 court did not go into the merits of the case. Thereafter the decree-holder moved applications, purporting to be under Section 58, Rules 30 and 46B of Order XXI of the Code, for proceeding against the revisionist as if he was a garnishee. The revisionist filed objection, saying that after the withdrawals of amounts of the salary of the staff for the months of February, March and April, pursuant to the orders dated 28.3.2003 and 29.3.2003 of the Court there was no balance in the account and moreover whatever was, it stood lapsed on closure of financial year on 31.3.2003. It was also said that he was not a' garnishee. The decree-holder filed another Writ Petition No. 1056 of 2004, which this Court disposed of vide order dated 25.3.2004. Relevant portion of this order dated 25.3.2004 is reproduced in para 15 of the counter-affidavit. A third writ petition (W.P. No. 3646 of 2004) was also disposed of vide order dated 24.8.2004, without entering into the merits.

(3.) Vide order dated 20.9.2004 passed in execution case No. 22 of 2000, and order dated 12.10.2004 passed in execution case No. 21 of 2004, the Court allowed the applications of decree-holder, under Section 58 read with Rules 36 and 46B of Order XXI of the Code. A perusal of order dated 20.9.2004 (impugned in Civil Revision No. 123 of 2004) reveals that the Court decided to proceed against the revisionist as if he was a garnishee, so it asked him either to pay the attached amount else be ready to be arrested and detained in civil prison, till the attached amount was paid in the Court or to the decree-holder. A perusal of order dated 12.10.2004, (passed in execution case No. 21 of 2000) against which Revision No. 136 of 2004 has been filed, would reveal that the executing court adjudged the revisionist as garnishee, qua the attachment dated 14.5.2001 and so directed issuance of warrant of arrest for putting him in civil prison till the payment was made, as according to it amount was recoverable under Rule 46B of Order XXI of C.P.C. There is no point in referring to various other orders, passed by the executing court prior to the orders, impugned in these revisions.