NUTHALAPATI KOTAIAH Vs. EXECUTIVE OFFICER

JUDGEMENT

(1.) APPELLANT is the decree holder in O.S. No. 62/77 laid against Uppalapati Pattabhi Ramayya and 11 others, and the principal debtor being one M. Lakshmaiah Choudary. The suit was filed to recover the debt due from M. Lakshmaiah Choudary. Thereafter, a compromise decree for a of Rs. 40,000/ - was passed against them. The appellant filed I.A. No. 1509/77 on June 31, 1978 under Order 21 Rule 52 and Order 21 Rule 46 -A CPC to pass a decree against the respondent garnishee which was ordered on August 31, 1978, without issuing notice For execution thereof E.P. No. 159 of 1978 was filed under Order 21 Rules 43, 66 and 64 C.P.C. for attachment of the moveable properties belonging to the respondent. It was effected on October 26, 1979 but the property was kept in the custody of the respondent on executing a bond for their production. Thereafter, a counter was filed by the respondent in the Court below stating that amount - -due and payable by the respondent to M. Lakshmaiah Choudary contractor is only a sum of Rs. 7,329 -70 paise and that the decree passed under Order 21 Rules 46 and 46 -B Is not binding on them since no notice was issued before passing the order. The said available amount was deposited to the credit of the suit. Both the contentions were found favour with the executing court with the result the E.P. was dismissed. As against that the present appeal has been filed. Sri Adinarayana Rao, learned counsel representing Sri G. Narayana Rao, very persuasively pleaded that the approach adopted by the Court below is clearly illegal It is argued that though the order in I.A. No. 1509 of 1977 was made without notice to the respondents, nonetheless it is a decree passed on the original side Having allowed the decree to become final, it is no longer open to the respondents to resist the same in execution. If the respondents are aggrieved against the order, the appropriate remedy was by way of appeal or an application to set aside the same and when recourse to that procedure having been resorted to the executing court cannot go behind the decree and accept the contention of the respondents. He draws the analogy of an exparte decree made under Order 9 Rule 13 C.P.C. The appellant would be left with no remedy against the garnishee after the decree was allowed to become final. The question, therefore, is whether the executing Court can entertain an objection by the garnishee regarding the non -binding nature of the decree made under Order 21 Rule 46 -B C.P.C.

(2.) TO appreciate this point, it is necessary to consider the relevant rules. Order 21 Rule 46 C.P.C. reads thus:

(3.) IN Macdougall vs. Paterson (1851) 11 C.B. 755 at 773 Jervis, C.J. held that "when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. For these reasons we are of the opinion that the word 'may' is not used to give a discretion, but to confer a power upon the Court and Judge and the exercise of such porter depends not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arises.