IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 31577 of 2009(O) -------------------------- AGAINST THE ORDER DATED 4/08/2009 IN EA 80/09 IN EP 88/03 IN OS.121/1981 of SUB COURT,THODUPUZHA .................... PETITIONER(S): ------------------------ SUB TREASURY OFFICER, SUB TREASURY, THODUPUZHA. BY GOVERNMENT PLEADER MR. K.R. GANESH RESPONDENT(S): --------------------------- M.L. GEORGE, S/O. LUKA, MALIYAKKAL, MUTHALAKODAM KARA, THODUPUZHA. BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31577/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER OF THE SUB COURT, THODUPUZHA DTD.4/08/2009 IN E.A.NO.80/2009. P2: COPY OF THE PETITION AND ORDER OF THE SUB COURT, THODUPUZHA DTD. 28/08/2009 IN E.A.NO.89/2009. P3: COPY OF THE EXTENSION PETITION FILED ON 26/09/2009 BEFORE THE SUB COURT, THODUPUZHA IN EP.NO.88/03 IN OS.NO.121/1981. P4: COPY OF THE PETITION EA NO.112/2009 IN E.P.NO.88/2009 OF THE SUB COURT, THODUPUZHA DTD. 25/09/2009. P5: COPY OF THE NOTICE ISSUED FROM THE SUB COURT, THODUPUZHA IN E.A.NO.112/2009. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE E.A. FOR ATTACHMENT DTD. 20/07/09 FILED BY THE PETITIONER. R1(B): COPY OF THE EA DTD. 18/08/09 FILED BY THE PETITIONER. R1(C): COPY OF THE AFFIDAVIT AND PETITION DTD. 26/09/09. R1(D): COPY OF THE PETITION DTD. 16/10/09. R1(E): COPY OF THE OBJECTION DTD. 29/06/09 FILED BY THE JUDGMENT DEBTORS. /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 31577 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 25th day of February, 2010 JUDGMENT This writ petition is directed against the order of the learned Sub Judge, Thodupuzha directing the Sub Treasury Officer, Thodupuzha to deposit an amount of Rs.6,72,712/- in the excise duty account maintained in the treasury before the court. 2. Two questions arise for consideration in this writ petition. First is that the petitioner claims that he cannot be treated as garnishee, as he is not the custodian of the amount and the custodian is the Commissioner of Excise. It is pointed out that the duty of the petitioner is only to maintain the account and he has no authority to disburse or pay any amount from the said account. Therefore, he cannot be treated as garnishee. The second contention taken is that in view of Order XXI Rule 52 of the C.P.C. , which provides attachment of property in custody of court or public officer, it is not possible to invoke Order XXI Rule 46 of the C.P.C. W.P.(C) No. 31577/09 2 3. Order XXI Rule 46 is popularly known as garnishee proceedings. Order XXI Rule 46A enables the court to issue notice to the garnishee, calling upon him either to pay into the court the debt due from him to the judgment debtor or to appear and show cause as to why he should not do so. In the case on hand the petitioner had pointed that he is not garnishee and he is not empowered to disburse the amount, since the custodian of the amount is Commissioner of Excise. On two occasions the petitioner sought time from the court in this regard. It is seen that the court below directed the garnishee under Order XXI Rule 46B to deposit the amount. 4. The above direction does not appear to be correct. When the petitioner appeared and pointed out that he cannot be treated as a garnishee in respect of the amount in question, the court below ought to have conducted an enquiry under Order XXI Rule 46C of the C.P.C. and it is only thereafter Order XXI Rule 46B would have been resorted to. W.P.(C) No. 31577/09 3 5. It was the incumbent on the part of the court below to determine the disputed issue, as contemplated under Order XXI Rule 46C of the C.P.C., before directing him to be deposited. This aspect has to be considered by the court below. While doing so, the court below has also to be considered the impact of Order XXI Rule 52 of the C.P.C. 6. In the result, this writ petition is allowed and the impugned order is set aside. The court below is directed to re-consider the matter and to decide as to whether the petitioner could be treated as garnishee. The court below shall also consider the impact of Order XXI Rule 52 of the C.P.C. The court below shall make every endeavour to dispose of the matter within three months from the date of receipt of copy of this order. P.BHAVADASAN, JUDGE. mn.