TEJWATI KUER Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) This appeal is brought on behalf of the decree-holders against the order of the Subordinate Judge of Monghyr, dated the 8th July, 1957, holding that the respondent, namely, the Central Bank of India, is liable to pay to the appellants Only a sum of Rs. 568.00 and odd, and not the full amount of the decree, namely a sum of Rs. 11,745.00 and odd.

(2.) It appears that the decree-holders had instituted a suit against Gajanand Marwari and certain others for recovery of a sum of Rs. 9998.00principal and interest due on a handnote. Before the suit was decreed a petition was filed by the appellants alleging that certain grain belonging to Gajanand Marwari and the other defendants was lying with the Central Bank of India. The appellants prayed for attachment before judgment. On the 18th July, 1955, an order of attachment before judgment under Order 38, Rule 5, CODE OF CIVIL PROCEDURE, 1908, was made by the court. On the 22nd August, 1955, the grain which was pledged to the Bank by the defendants was sold in a public auction for a sum of Rs. 39,539.00 and odd. The Bank informed the court on the 10th October, 1955, that the grain had been sold, and after adjustment of its dues from Gajanand Marwari a balance of Rs. 568.00 and odd was lying with the Bank. The decree was granted in the suit by the Subordinate Judge to the appellants on the 14th September 1956. On the 29th September, 1956, the appellants filed a petition in the execution case for recovery of the decretal amount from the judgment-debtors, namely, Gajanand Marwari and others. In that petition the appellants also impleaded the Central Bank of India as a Garnishee. On the 29th November, 1956, the Bank filed an application before the executing court praying that the execution case should be dismissed as against the Bank and the notice issued against the Bank under Order 21, Rule 63-A, CODE OF CIVIL PROCEDURE, 1908, may be withdrawn. This petition was dismissed fay the executing court for default on the 15th December, 1956. A restoration petition was filed by the Bank on the 18th December, 1956. On the same date a second application praying for exactly similar reliefs as in the previous petition was filed before the executing Court. The application for restoration was numbered as Miscellaneous Case No. 119 of 1956, and the second petition was numbered as Miscellaneous Case No.118 of 1956. For some unknown reason the Bank did not press the Miscellaneous Case No. 119 of 1956, which Was accordingly dismissed by the executing court. The second petition was, however, taken up by the executing court and has now been decided in favour of the Bank. The view taken by the Subordinate Judge is that the Bank is entitled as a pledgee to appropriate the sale proceeds in the first place towards the debt due to it from the judgment-debtors, and the decree-holder appellant's were entitled only to the balance of Rs. 568.00 and odd in deposit with the Bank. The present appeal is brought on behalf of the decree-holders against this Order of the executing court.

(3.) On behalf of the appellants the main-argument put forward is that the order of the learned Subordinate Judge dated the 8th July, 1957. is vitiated in law because of the bar of res judicata. It was submitted that the petition of the Bank denying its liability to satisfy the decretal dues of the appellants was filed on the 29th November, 1956. That petition was dismissed for default on the 15th December, 1956. It was also pointed out that a restoration application was filed by the Bank on the 18th December, 1956, but this application was also dismissed on the 13th March, 1957, because for some reason or other counsel appearing for the Bank did not press that application. It was, therefore, submitted On behalf of the appellants that the second petition, filed by the Bank for the same reliefs on the 18th December, 1956. is barred by the principle of res judicata. In our opinion this argument on behalf of the appellants appears to be well founded. But in order to meet this point learned Counsel appearing for the respondent Bank submitted that the second petition dated the 18th December, I 1956, may be treated as a plaint and the case may be remanded to the lower court for realising the proper court-lee from the Bank and treating the second petition dated the 18th December, 1956, as a plaint and proceeding further in the matter as if a suit had been filed. In support of this submission learned counsel referred to the decision of the Calcutta High Court in Dhan Bibi v. Mrinalini Ghosh, AIR 1945 Cal 449, where in almost similar circumstances, the unsuccessful claimant in an execution case was permitted to treat his objection petition as a suit on payment of the deficit court-fee. In our opinion this appears to be the proper course to be taken in the special circumstances of this case. The reason is that both the parties were labouring under a common mistake of law in the executing court. It appears that in the execution petition the ants wished to proceed and realise the amount due from the judgment-debtors against the Bank as a "Garnishee". In the objection petition filed on the 29th November, 1956, by the Bank it is not denied that the Bank stands in the position of a Garnishee, but the liability of the Bank is admitted only to the extent of Rs. 568.00and odd. Now it is conceded-by learned counsel for the appellants that the Bank is not a Garnishee, because the attachment before judgment was made not of a debt hut of immoveables (sic) within the meaning of Order 21, R. 46(1)(c), CODE OF CIVIL PROCEDURE, 1908. This position was also conceded by learned counsel appearing on behalf of the respondent Bank in this case. It is clear that there is no attachment of any debt under the provisions of Order 21, Rule 46-A, (sic) and so the question of applying the provisions of Order 21, Rule 63-A does not arise in this case. It appears to us that both the decree-holders-appellants and the respondent Bank were labouring under a common mistake of law in proceeding in the executing court on the assumption that the Bank was a Garnishee and the provisions of Order 21, Rule 63-A, had application In view of this circumstance we consider that in the interest of justice the prayer of the respondent Bank should be allowed and the second petition filed by the Bank in the executing court on the 18th December, 1956. should be treated as a plaint, subject to the condition that the respondent Bank pays the proper court-fee. In adopting this course we are following the principle laid down by the Calcutta High Court in AIR 1945 Cal 449.