Dismissed

The Executive Engineer (Elec) v. Sri S.R. Rangaswamy

Karnataka HC7 Oct 2020WP/23601/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition seeking quashing of an appellate order directing recovery of a decree debt from pension and death benefits held by the petitioner unit as a garnishee for the deceased judgment debtor. The Court held that the debts are attached against the estate, not individuals, and the garnishee lacked independent standing to object.

What did the court decide?

Writ petition dismissed; respondent awarded costs of Rs. 5,000 to be paid by the petitioner.

The Executive Engineer (Elec) Vs Sri S.R… — Execution and Attachment | Karnataka HC (2020)

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W.P. NO.23601 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.23601 OF 2015 (GM-CPC)

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BETWEEN:

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THE EXECUTIVE ENGINEER (ELEC) O & M DIVISION MANGALORE ELECTRICITY SUPPLY COMPANY LTD SHIMOGA-577201 ... PETITIONER

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(BY SRI.H.V. DEVARAJU, ADVOCATE)

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AND:

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SRI. S.R. RANGASWAMY S/O RANGAIAH MAJOR JUNIOR ASSISTANT, MESCOM R/AT 4^TH CROSS, TANK MOHALLA SHIMOGA CITY-577 201 ... RESPONDENT

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(BY SRI. M.V. MAHESHWARAPPA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF THE I ADDL. SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AT SHIMOGA IN EXECUTION APPEAL NO.2/2013 DATED 1.12.2014 VIDE ANNEXURE-G AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner-Executive Engineer (Ele), O & M Division, Mangalore Electricity Supply Company Limited, Shimoga (for short, MESCOM) is before this Court seeking for certiorari to quash the order dated 01.12.2014 passed in Execution Case Appeal No.2/2013 by I Additional Senior Civil Judge and Chief Judicial Magistrate, Shimoga.

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The facts giving rise to the above petition as are:

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2.1. Sri.S.R.Rangaswamy had filed a suit for recovery of money along with interest @ 12% p.a. from the date of the suit till realisation in O.S.No.95/2011 against the legal heirs of late Javaraiah who had borrowed a sum of Rs.2,50,000/- from said S.R.Rangaswamy and before he could return the amount, he expired. The said suit came to be opposed by the defendants therein.

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2.2. That after examining the matter, the trial

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Court decreed the suit of the plaintiff directing the defendants therein, the legal heirs of the deceased Javaraiah to make payment of Rs.2,50,000/along with interest @ 12% p.m., within a period of two months from the date of the judgment.

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2.3. The decree-holder - Rangaswamy had filed the proceedings in Execution Case No.2/2013 before the I Additional Senior Civil Judge and Chief Judicial Magistrate, Shimoga and sought for an order against the MESCOM-the petitioner herein as a garnishee to deposit the said amount. Thereafter, Rangaswamy filed an application under Order 21 Rule 46(A) of CPC. The trial Court issued court notice to the garnishee.

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2.4. The garnishee filed its objection contending

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that the defendants in the said suit viz., Rajamma, wife of late Javaraiah and Siddaiah, elder brother of the said Javaraiah were not the legal heirs of said Javaraiah as per the records maintained by MESCOM. Javaraiah divorced Rajamma, and though the name of Rajamma was earlier mentioned as a legal representative of Javaraiah, post-divorce, her name was deleted from the records. Siddaiah was the brother of late Javaraiah, who also could not be considered to be the legal heir of late Javaraiah. Hence, Rajamma and Siddaiah could not be considered as legal heirs. Javaraiah was not having any children he lef behind no legal heirs. As such MESCOM objected to garnishee order being passed contending that there being no legal heir of the deceased Javaraiah and

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more so, when the defendants are not the legal heirs, the garnishee order would not be binding on MESCOM. MESCOM had not borrowed any loan from the said S.R.Rangaswamy. Therefore, MESCOM is not liable to make payment of money and as such, sought for lifting of the garnishee order.

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2.5. The Executing Court on the basis of the submission made by MESCOM come to the conclusion that Rajamma had been divorced and hence, she could not claim as legal heir of late Javaraiah and lifted the garnishee order, it further held that Siddaiah was also not thelegal heir of Late Javariah.

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2.6. In view thereof, the said Rangaswamy filed an appeal in Execution Case Appeal No.2/2013 which came to be allowed on 1^st

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December 2014 by the Appellate Court holding that S.R.Rangaswamy had filed a suit for recovery of money lent by him to late Javaraiah and the said amount was to be recovered from the estate of said late Javaraiah. The death benefit on par thereof could be attached and as such, by way of an order dated 1^st December 2014 has set aside the order dated 30.11.2013 and directed the trial court to proceed from the stage when the order was passed on 30.11.2013.

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It is aggrieved by the said order, the petitioner is before this Court. Shri.H.V.Devaraju, learend counsel for the petitioner submits that:

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3.1. Rajamma is not the legal heir of said Javaraiah nor Siddaiah is the legal heir of said Javaraiah. The amounts held by MESCOM being the gratuity and death

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benefits are protected from attachments by virtue of proviso (g) to Section 60 (1) which is reproduced herein.

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"60 (g) stipends and gratuities allowed to pensioners of the Government [or of a local authority or of any other employer], or payable out of any service family pension fund notified in the Official Gazette by [the Central Government or the State Government] in this behalf, and political pensions"

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3.2. MESCOM was not made as a party to the Execution Appeal. Therefore, MESCOM is denied an opportunity to place its say before the Appellate Court.

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3.3. During the pendency of the said suit itself, Rajamma had expired on 12.08.2011 before the judgment could have been passed. Therefore, MESCOM is not liable to make payment.

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3.4. Learned counsel relies on the judgment of

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the Hon’ble Supreme Court in the case of RADHEY SHYAM GUPTA VS. PUNJAB NAITONAL BANK AND ANOTHER reported in (2009) 1 SCC 376 more particularly Para 33 thereof which reads as under:

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"33. However, we are also of the view that having regard to proviso (g) to Section 60 (1) of the Code, the High Court committed a jurisdictional error in directing that a portion of the decretal amount be satisfied from the fixed deposit receipts of the appellant held by the Bank. The High Court also erred in placing the onus on the appellant to produce the Matador in question for being auctioned for recovery of the decretal dues. In other words, the High Court erred in altering the decree of the trial court in its revisional jurisdiction, particularly when the pension and gratuity of the appellant, which had been converted into Fixed Deposits, could not be attached under the provisions of the Code of Civil Procedure. The decision in the Jyoti Chit Fund case (supra) has been considerably watered down by later decisions which have been indicated in paragraph 22 hereinbefore and it has been

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held that gratuity payable would not be liable to attachment for satisfaction of a court decree in view of proviso (g) to Section 60(1) of the Code.

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Per contra, Sri.M.V.Maheshwarappa, learned counsel for respondent would support the judgment of the Appellate Court and further submits that the garnishee has no locus standi to question the order of garnishee so long as the

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decree continues to be in force.

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Having heard the learned counsel for both the parties, the points that arise for consideration are:

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5.1. Would a garnishee on its own have any independent right to object to an order passed against it? If so on what grounds.

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5.2. In the present matter, is the decree passed against Rajamma and Siddaiah in their individual capacity?

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5.3. Was the garnishee required to be made as a party in the execution appeal proceeding?

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5.4. Does the order of the Appellate Court suffer any legal infirmity requiring interference at the hands of this Court?

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5.5. What order?

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The above points are answered as under

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Point No.1: Would a garnishee on its own have any independent right to object to an order passed against it? If so on what grounds.

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7.1. Garnish : The French word “garnir” is the root for the word “Garnish” which means to warn.

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7.2. Garnishee: A Garnishee is generally described as a judgment-debtor's debtor. To be a Garnishee, the Garnishee is required to be indebted to the Judgement Debtor. A garnishee is a person who is liable to pay a debt to a judgment debtor or to deliver any movable property to the Judgement Debtor, more often than not

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this is seen ony in respect of debt. It is of note that there cannot be a Garnishee in respect of an immovable property.

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7.3. Garnishment : The debt or movable

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property in the hands of the Garnishee belonging to the Judgement Debtor can be subjected to garnishment.

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7.4. Garnisher: A Garnisher is a judgment-

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creditor (decree-holder) who initiates a garnishment action to reach the debtor's property that is held or owed by a Garnishee to the Judgement Debtor.

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7.5. Garnishee Order: A garnishee order is an order passed by an executing court directing or ordering a garnishee not to pay money to judgment debtor since the latter is indebted to the Garnisher (decreeholder). It is an order of court to attach

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money or goods belonging to the judgment debtor in the hands of a Garnishee who is not a party to the suit. Such an order can either be made directing the Garnishee not to make payments to the judgement debtor until so authorized by the court or the lifting of the garnishee order as an interim measure or a direction to make payment of the money of the judgement debtor held by the garnishee to the judgement creditor. A garnishee order as an interim measure is to protect the interest of the creditors.

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7.6. Prior to the insertion of Order 21 Rule 46 A to 46 I by the Code of Civil Procedure by the Amendment Act, 1976 a Court had no power to compel a garnishee to pay debt in Court.

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7.7. However, with the insertion of 46A the

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debt due by the debtor of the judgment debtor is available in execution to the decree holder, the object being not to drive the decree holder to another suit. The primary object of a garnishee order is to make the debt due by the debtor of the judgment debtor available to the decree holder in execution without driving him to the suit. The court may, in the case of debt which has been attached under Rule 46, upon the application of the decree holder, issue a notice to garnishee liable to pay such debt, calling upon the garnishee to either pay into court the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so. Such payment by the Garnishee into court would

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be a valid discharge to him as against the judgment debtor. In the event of the Garnishee neither appearing nor making payment as ordered, the court may order the garnishee to comply with such notice as if such order were a decree against him. In the event of denial of debt by the garnishee on appearance, the Court is duy bound to enquire if debt was in fact due and give a finding thereon. In the absence of a finding to this effect it is not open to the court to either deosit the amount in court or make payment to the Decree Holder.

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7.8. The garnishee cannot in the absence of denial of debt object to any order to be passed against the garnishee or any direction to deposit the monies since the garnishee does not have any independent

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right over the said monies. As long as money is owed by the garnishee to the judgment debtor, the garnishee would have to make payment of monies called upon. If there is no money owed, such person cannot be a debtor of the Judgement Debtor, therefore cannot be a Garnishee.

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7.9. On the basis of the above discussion I answer Point no. 1 holding that a garnishee on its own would not have an independent right to object to an order passed against it so long as a debt is due and liable to be paid by the Garnishee to the Judgement debtor.

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Point No.2: In the present matter, is the decree passed against Rajamma and Siddaiah in their individual capacity?

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8.1. In the present case, there is no dispute with regard to the monies held by the

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garnishee was not that owed to late Javariah or his legal heirs. The said amounts were the pensionary benefit and death benefits of late Javaraiah.

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8.2. The suit was filed by S.R.Rangaswamy against the alleged legal heirs of Javaraiah. A reading of entire proceedings would make it clear that there is no independent right or demand made by S.R.Rangaswamy against Rajamma or Siddaiah – defendants therein. They are only made parties on account of they being the legal heirs of late Javaraiah and not because they owe any monies in their individual capacity to the plaintiff-S.R.Rangaswamy. Thus, in effect, the suit was filed to recover the monies owed by Javaraiah to the plaintiff – S.R.Rangaswamy from the estate of late Javaraiah.

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8.3. The death benefits held by MESCOM would

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form the estate of Javaraiah. As such, the plaintiff has proceeded against the legal heirs of said Javaraiah, obtained a decree and thereafter sought to enforce it by filing the Execution Petition against MESCOM/Garnishee who is holding the monies of late Javaraiah.

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8.4. I Answer this point by holding that the decree which has been passed against Rajamma and/or Siddaiah is not against them in their individual capacity but is passed as regards the estate of late Javaraiah.

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Point No.3: Was the garnishee required to be made as a party in the execution appeal proceeding?

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9.1. The initial garnishee order having been passed in the execution proceedings and

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subsequently vacated by the Executing Court, the plaintiff – decree holder S.R.Rangaswamy filed an Execution Appeal challenging the order passed by the Execution Court. Though the said order by the Executing Court was passed on the basis of the objections filed by garnisheeMESCOM, it is a matter of fact and record that MESCOM is only a garnishee. MESCOM does not claim any independent right over any monies nor does MESCOM dispute the fact that it owes monies to the estate of late Javaraiah.

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9.2. In such a situation, there being no denial by MESCOM of being a garnishee. There was no need for MESCOM to be made as a party in the Execution Appeal. Such need would have arisen only in the event of

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MESCOM disputing the liability itself, which is not the case here.

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10. Point No.4: Does the order of the Appellate Court suffer any legal infirmity requiring interference at the hands of this Court?

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10.1.In view of the above, I find no infirmity in

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the order passed by the I Additional Senior Civil Judge and Chief Judicial Magistrate, Shimoga in Execution Case Appeal No.2/2013 vide order dated 01.12.2014.

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11. Point No.5: What order?

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11.1.Writ Petition is dismissed.

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11.2.Taking into account that a garnishee like MESCOM, which is a Governmental body has successfully prevented the decree holder from obtaining the fruits of the decree which was passed on 07.09.2012 till date, I deem it fit to award cost of Rs.5,000/- payable to the respondent by

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the petitioner within two months from the

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date of this order.

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Sd/JUDGE

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Prs*