1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original third party to quash and set aside the impugned judgement and order dated 31/08/1989 passed by learned Appellate Court i.e. learned Assistant Judge, Mahesana in Regular Civil Appeal No.1 of 1989 which was preferred against the order dated 16/09/1988 passed by learned Civil Judge (J.D.), Kadi (learned Executing Court) in Regular Darkhast No.34 of 1987, by which, learned Executing Court has issued order of garnishee / Jungam warrant attaching the amount of security deposit, deposited by respondent No.2 herein - judgement-debtor with the appellant herein – Gujarat Electricity Board.
2. Facts leading to the present second appeal, in nutshell, are as under:
That pursuant to the judgement and decree passed by learned Civil Judge (J.D.), Kadi in Regular Civil Suit No.2 of 1983 for recovery of Rs.18,971.18 ps., which was due and payable by respondent No.2 herein–original judgement-debtor, respondent No.1 herein – judgement-creditor preferred execution petition being Regular Darkhast No.34 of 1987 to recover an amount of Rs.20846.34 ps. and in the said execution petition, respondent No.1 herein - judgement- creditor requested the Court that an amount of Rs.2 Lacs was lying with appellant herein - Gujarat Electricity Board by way of security deposit and the said amount was deposited before the appellant – board by respondent No.2 herein and, therefore, it was requested that out of the amount of the security deposit, the decreetal amount be ordered to be realised by issuing necessary garnishee order. That thereafter, learned Executing Court passed an order of garnishee / Jungam warrant against the appellant herein to the extent of Rs.20,846.34 ps., which came to be challenged by the appellant – board before learned Appellate Court i.e. learned Assistant Judge, Mahesana by way of Regular Civil Appeal No.1 of 1989 and learned Appellate Court by impugned judgement and order dated 31/08/1989 has dismissed the said appeal confirming the order passed by learned Executing Court directing to issue garnishee order / Jungam warrant against the appellant herein to the extent of Rs.20,846.34 ps. against the amount of security deposit lying with the appellant herein - Gujarat Electricity Board.
Being aggrieved by and dissatisfied with the judgement and orders passed by learned Appellate Court as well as learned Executing Court directing to issue garnishee order / Jungam warrant against the appellant herein to the extent of Rs.20,846.34 ps., the appellant herein has preferred the present second appeal under section 100 of the Code of Civil Procedure.
3. Mr.M.D.Pandya, learned advocate appearing on behalf of the appellant herein has vehemently submitted that both the Courts below have materially erred in holding that the amount, which was lying with the appellant – baord as security deposit by its consumer, would be liable to be attached and for which garnishee order / Jungam warrant can be passed. It is submitted that as such amount lying with the appellant herein by way of security deposit, deposited by its consumer for its future debts and to secure future debts of the appellant, which could not be liable to be attached under the garnishee order. Therefore, it is submitted that both the Courts below have materially erred in issuing garnishee order / Jungam warrant against the appellant herein to the extent of Rs.20,846.34 ps. from the amount, which was lying with the appellant-board by way of security deposit, deposited by its consumer – respondent No.2. By making above submissions, it is requested to allow the present second appeal.
4. Though served, nobody appears on behalf of respondent No.2.
5. Mr.Patel, learned advocate for M/s.H.L.Patel Advocates appearing on behalf of respondent No.1 herein has stated at the bar that he has no further instruction in the matter though he was appearing on behalf of respondent No.1.
This second appeal is of the year 1990, this Court has no another alternative but to proceed further with the present second appeal ex-parte.
6. Having heard Mr.M.D.Pandya, learned advocate appearing on behalf of the appellant herein and considering the impugned judgement and order passed by learned Appellate Court as well as order passed by learned Executing Court directing to issue garnishee order / Jungam warrant against the appellant-board to the extent of Rs.20,846.34 ps. from the amount lying with the appellant-Board as security deposit, deposited by its consumers i.e. respondent No.2 herein. It is not in dispute and it cannot be disputed that the amount lying with the appellant-board was by way of security deposit, deposited by its consumer i.e. respondent No.2. It cannot be disputed that the said security deposit is to secure future debts of the appellant-board. Under the circumstances, the amount which was lying with the appellant-board was not liable to be attached under the garnishee order /Jungam warrant. Under the circumstances, learned Executing court has materially erred in passing the order of garnishee / Jungam warrant to the extent of Rs.20,846.34 ps. from the amount lying with the appellant- board as security deposit, deposited by respondent No.2 herein. As the same is not liable to be attached on the debts of respondent No.2 herein, learned Appellate Court has materially erred in confirming the order passed by learned Executing Court of issuing garnishee order / Jungam warrant.
7. In view of the above and for the reasons stated hereinabove, the present second appeal succeeds. The order passed by learned Civil Judge (J.D.), Kadi (learned Executing Court) dated 16/09/1988 in Regular Darkhast No.34 of 1987 issuing garnishee order / Jungam warrant to the extent of Rs.20,846.34 ps. from the amount lying with the appellant herein – Gujarat Electricity Board as security deposit, deposited by respondent No.2 herein – judgement-debtor as well as the impugned judgement and order dated 31/08/1989 passed by learned Appellate Court- learned Assistant Judge, Mahesana in Regular Civil Appeal No.1 of 1989 are hereby quashed and set aside. No costs.
[M.R.SHAH,J] *dipti