SURENDER SINGH BAJAJ Vs. KITTY STEELS LIMITED

JUDGEMENT

(1.) I have had the advantage of reading in advance the judgment in draft prepared by my learned Brother Ch. S.R.K. Prasad, J. I am in respectful agreement with my learned Brother that the appeal has to be allowed and the order impugned in the appeal has to be set aside and IA No. 2957 of 2001 is liable to be dismissed. However, I propose to add comments of my own.

(2.) This civil miscellaneous appeal filed under Order 43, Rule 1(q) of CPC is directed against an order and decree dated 29-11-2001 passed in IA No. 2957 of 2001 in OS No. 540 of 2001 on the file of the Court of the Chief Judge, City Civil Court, Hyderabad. The appellant in this appeal is the 1st defendant and the respondents in this appeal are the plaintiffs in the suit OS No. 540 of 2001. The plaintiffs have filed the suit for recovery of a sum of Rs. 11,89,340/- with interest and costs from the 1st defendant-the appellant, basing on the debt vouchers signed by the 1st defendant in favour of the plaintiffs. In the said suit, the plaintiffs filed the petition IA No. 2957 of 2001, under Order 38, Rule 5 CPC to grant attachment before judgment by attaching cash of Rs. 4 lakhs lying in deposit with the Court of the Special Judge for Economic offences, Nampally, Hyderabad in Case No. SWG/REF/ICD/TS/ 2/97-CUS (SHB) pending disposal of the suit. The material averments in the affidavit filed in support of IA No. 2957 of 2001 sworn to by Sri H.S. Sethi, the 2nd petitioner, reads as follows:

(3.) Sri Raghuveer Reddy, learned Counsel for the appellant would contend that (i) the Court below has failed to see that the surety money in the hands of the 2nd respondent - garnishee cannot be attached in exercise of power under Order 38, Rule 5 CPC, unless final decree is passed in the suit; (ii) that the plaintiffs have failed to make out that the conditions precedent for invoking power under Order 38, Rule 5, CPC are absent and therefore, the application should have been dismissed in limine; (iii) that though the movable properties of the judgment-debtor falling within Clause (c) of Order 21, Rule 46(1) which are not in the possession of the judgment-debtor can be attached, an exception is made in the case of such movable property if deposited in, or in the custody of, any Court. Sri Raghuveer Reddy, learned Counsel for the appellant in support of the 1st contention placed strong reliance on the judgment of a single Judge of this Court in J. Balakrishna v. United Bank of India, 1999 (4) ALD 22 = 1999 (4) ALT 65 = 1999 (2) LS 203.