ZANGAM VARA PRASAD Vs. UPPALAPATI KRISHNA KUMAR

JUDGEMENT

(1.) THE 1st respondent filed OS No.60 of 2000 in the Court of the Principal Senior Civil Judge, Vijayawada, against the 2nd respondent, for recovery of certain amount. He filed IA No.347 of 2000 under Order XXXVIII, Rule 5 CPC with a prayer to direct attachment of the amounts that are available with M/s. A.P. Vikalangula Co-operative Corporation, 6th Floor, Chandravihar, Nampally, Hyderabad (for short 'Garnishee'). It was pleaded that an amount of Rs.2,60,000/- payable to the 2nd respondent was available with the Garnishee. THE trial Court passed an order on 1.3.2000 directing attachment of an amount of Rs.2,60,000/- and the same was made absolute on 13.3.2000. THE suit was decreed ex parte on 12.7.2000.

(2.) THE 1st respondent filed EA No.305 of 2000 under Section 151 CPC with a prayer to send for the amount that was lying with the Garnishee, to the Executing Court. THE application was ordered on 20.7.2000 and the same was served on the Garnishee on 31.7.2000. This was followed by filing of EA No.47 of 2002 for complying with the garnishee order. It was found that despite the order of attachment and specific directions for sending the amount, the Garnishee paid the amount to another creditor of the 2nd respondent. THErefore, the 1st respondent filed EA No. 133 of 2002 under Rule 46B of Order XXI read with 151 CPC with a prayer to send the appellants herein, to civil prison for contempt of Court, committed by them. THE appellants worked as Deputy Director and Accountant, respectively, of the Garnishee at the relevant point of time. THEy opposed the application by filing a counter. THE Executing Court allowed the EA through its order dated 14.10.2003. Hence, this revision.

(3.) THE objection raised by the learned Counsel for the respondents as to maintainability of the appeal needs to be considered first. It is no doubt true that an order passed in an application filed under Rule 46B of Order XXI is treated as a decree and Rule 46H directs that a regular appeal can be maintained against it. THE present appeal is filed under that provision. Obviously, because of lack of clarity as to whether an appeal presented under that provision has to be treated as regular appeal or as miscellaneous appeal; the Registry numbered it as miscellaneous appeal. It cannot be said to be a serious irregularity, once the correct provision of law is invoked.