CRP/5713/2009 of Deputy Commissioner (CT) Vs Nelakuditi Sankara Rao on 30 December 2011

ORDER:

This Civil Revision Petition is filed aggrieved by the order,dated 08-10-2009 passed in E.A.No.39 of 2007 in E.P.No.27 of2006 in O.S.No.3155 of 2003 by the IV Additional Junior Civil Judge,Vijayawada, wherein the court below directed to attach the salary of thepetitioner-garnishee.

None appears for the 1[st] respondent/decree holder, despite serviceof notice.

The petitioner/Deputy Commissioner (CT), Division-I is thegarnishee. It is stated that the 1[st] respondent herein filed a suit inO.S.No.3155 of 2003 against the 2[nd] respondent herein on the file of theIV Additional Junior Civil Judge, Vijayawada, for recovery of money andduring pendency of the suit, it appears that attachment before judgmentprohibiting the employer of the 2[nd] respondent/defendant from makingpayment of a sum of Rs.1,09,656/- was ordered and, thereafter, the suitwas decreed. The 1[st] respondent/decree holder filed E.P.No.27 of 2006for execution of the decree. He also filed E.A.No.39 of 2007 in E.P.No.27of 2006 in O.S.No.3155 of 2003 to issue show-cause notice to thepetitioner herein/garnishee to explain as to why recovery proceedingsshall not be initiated against him for not implementing the Court orderpassed in E.P.No.27 of 2006. The court below vide its order dated 15-07-2009, allowed the said E.A. and directed to issue a show cause notice to the petitioner-garnishee as to why his salary should not be attached inorder to realize the decretal amount. After receipt of notice in E.A.No.39 of2007, the petitioner/garnishee submitted his explanation on 06-08-2009stating that the judgment debtor had retired from service on 30-09-2004 onattaining age of superannuation, but on certain irregularities, his retirementbenefits such as leave encashment, family benefit fund, Group Insurance,Gratuity and Commutation of pension were not paid except paying G.P.F. Charges were framed against the judgment debtor and Departmentalenquiry has been initiated. Penalty proceedings are yet to be initiatedagainst him by the Government. The department has taken general lienand first charge on the unpaid benefits to the judgment debtor, as the totalamounts of about Rs.12,00,000/- that would render on account of NationalSavings Certificates were not handed over to the Department. Thus, it isstated that the Government would have the first charge over the amountsrecoverable from the judgment debtor. As the petitioner failed to send theattached amount to the court below in spite of receiving notice, the courtbelow vide its order, dated 08-10-2009, ordered to attach the salary of thepetitioner/garnishee, as he being the garnishee of the judgment debtor. Aggrieved thereby, the present Civil Revision Petition is filed.

Learned counsel appearing for the 2[nd] respondent submits that asthis court granted stay of the impugned order, the decree holder has tochoose other recourse to realize the said decretal amount from othersi.e.sureties.

I am not inclined to express any opinion with regard to the saidcontention. Insofar as compliance of the attachment order is concerned,this court is of the opinion that the petitioner-garnishee is bound to honourthe Court’s order by recovering required amounts from the amounts payable to the Judgment Debtor that are available on which there was nolien or charge. However, as the enquiry proceedings are pending againstthe judgment debtor for recovery of penalty amount, non-compliance of theCourt order by the petitioner/garnishee cannot be said to be illegal anddeliberate, as the Government has got the first charge. Therefore, theimpugned order is liable to be set aside.

Accordingly, the Civil Revision Petition is allowed setting aside theimpugned order. There shall be no order as to costs.

Prv

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30-12-2011