SYNDICATE BANK Vs. NALLURI KRISHNA MOHAN RAO

JUDGEMENT

(1.) This revision petition is filed against the order and decree dated 17-12-1991 passed by the learned Principal Subordinate Judge, Ongole, in EP No.40 of (1992) in OS No. 202 of 1979.

(2.) The petitioner is the Gamishee Bank. The first respondent is the decree-holder. The third respondent is the wife of the judgment-debtor. The first respondent filed a suit for recovery of certain sums in OS No.202 of 1979 and the same was decreed. In pursuance of the decree, the first respondent filed EP No.40 of 1982 under Order XXI, Rule 46 of the Code of Civil Procedure seeking Gamishee Order for attachment of golden ornaments in the hands of the petitioner-garnishee viz., Syndicate Bank for realisation of the decretal amount. The bank resisted the application and contended that it has power to retain the property as there is banker's lien over the properties mortgaged before it and, therefore, the civil Court cannot exercise any power to order garnishee until the amount is realised out of the property mortgaged to the bank. Learned Judge, however, accepting the contention of the bank held that the property of late Subba Rao has to be divided into two shares and one such share should be sold out and other share is to be retained by the bank for realisation of the amount due to it. It is stated that 78 grams of gold was mortgaged in the bank for the purpose of obtaining loan. The lower Court held that 39 grams should be kept in the bank towards the realisation of the loan amount and 39 grams is to be released to the third respondent. It held as follows:

(3.) Thus, the lower Court has virtually divided the property of late Subba Rao into two shares and directed half of the property is to be retained by the bank and the half to be released to the third respondent, who is the wife of the deceased judgment-debtor. It is also brought to the notice of this Court that the son for whom the half share will go also died subsequently. Aggrieved by the orders dated 17-12-1991 the revision is filed by the bank.