The Sub Treasury officer, Thodupuzha is the petitioner herein. Challenge is against Ext.P1 order of attachment, Ext.P3 notice and Ext.P4 order passed by the subordinate judge's court, Thodupuzha in EP No.2/2004 in LAR No.14/1996.
2. The issue pertains to an Execution Petition filed by the respondent herein for realising the amount of compensation awarded in LAR No.14/1996. In the Execution Petition, the respondent herein, who is the decree holder, had filed EA No.55/2009 seeking attachment of the amount of the decree debt along with interest to the tune of Rs. 3,27,190/- from the Government Treasury, lying in Head of Account No.0039, which pertains to Excise Duty, maintained by the State of Kerala. The executing court had passed Ext.P1 order attaching the said amount from the Head of Account mentioned above, in the Sub Treasury.
Presumably Ext.P1 order is issued under Rule 46 of Order XXI of the Code of Civil Procedure. Thereafter the court had issued Ext.P2 notice as contemplated under Rule 46A to the petitioner, on the basis of an application filed by the respondent as EA No.94/2009, seeking direction against the petitioner to make deposit of the attached amount to the court. On 28-08-2009 when the case was posted on the basis of Ext.P2 notice, the execution court had allowed EA No.94/2009. On that basis Ext.P4 notice was issued to the petitioner directing to deposit the amount of Rs.3,27,190/- which was already attached, on or before 16-09-2009. The petitioner thereupon filed an application before the Execution Court, as per Ext.P5, seeking extension of time to execute the direction contained in Ext.P4. Since the said application was not considered, this writ petition is filed challenging Ext.P1 order of attachment, Ext.P3 notice and Ext.P4 order.
3. Contention of the petitioner is that he was not given proper opportunity to show cause as to why the amount is not liable to be attached. It is contended that the petitioner is disputing the liability for making payment of the amount attached and ordered for deposit through Ext.P5. On that basis it is contended that the executing court ought to have conducted trial of the disputed question as contemplated under Rule 46C, before issuing Ext.P4 order.
4. In this regard, a scanning of the relevant provisions contained under order XXI of the Code of Civil Procedure will be beneficial. Under Rule 46 the Execution Court is entitled to attach any movable property, not in the possession of the judgment debtor or order such attachment. The court is empowered to prohibit any person in possession of such movable property from transferring it to the judgment debtor. Presumably Ext.P1 order of attachment is one issued in exercise of power vested under Rule 46. Rule 46A provides that, on the application of the decree holder, the court has to issue notice to the garnishee 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 at hand, the petitioner being a garnishee was issued with a show cause notice as contemplated under Rule 46A, as evidenced from Ext.P2, based on Ext.P3 application filed by the respondent. The date fixed for appearance of the garnishee was on 28-08-2009. It is evident from Ext.P3 that on 28-08-2009 the Sub Judge had allowed Ext.P3 application. In the writ petition it is stated that the petitioner had appeared through the Government Pleader in the court on 28-08-2009 and sought time to file counter in the attachment petition. However, nothing is there on record to indicate that any request for adjournment of the matter was made on 28-08-2009, on behalf of the petitioner. Exhibit P4 is an order issued under Rule 46B. The said provision enables the court to order the garnishee to comply with the terms of notice issued under Rule 46A, when the garnishee fails to make deposit or to show cause in answer to the said notice. The petitioner in this case had filed Ext.P5 application after receipt of Ext.P4 order issued under Rule 46B. Even in Ext.P5 the petitioner had not raised any dispute with respect to liability for deposit of the amount before the court. On the other hand, prayer in Ext.P5 is only to the extent of seeking extension of time to execute the order. But in the present writ petition Ext. P4 order is challenged mainly contending that the petitioner is not a garnishee since he is not the custodian of the remittance contained in the particular Head of Account.
5. Learned Government Pleader contended that when the petitioner had raised such a dispute the executing court ought to have proceeded to try such dispute in order to determine the liability of the garnishee, as contemplated under Rule 46C. In this regard reliance was placed on the decision of this court in Sub Treasury officer, Thodupuzha V. M.L. George (2013 (4) KLT 426). It is incumbent on the part of the execution court to determine the disputed issue, as contemplated under Order 21. Rule 46C of the CPC, before directing deposit. It says that when a person appears before the court and points out that he cannot be treated as a garnishee in respect of the amount in question, the court has to conduct an enquiry under Rule 46C and it is only thereafter the order under Rule 46B can be issued, is the findings.
6. On the facts of the case at hand it is evident that despite receipt of Ext.P2 show cause notice issued under Rule 46A the petitioner had not raised any dispute regarding the liability. Further it is to be noticed that on receipt of Ext.P4 order, which can only be considered as one issued under Rule 46B, the petitioner had preferred Ext.P5 application only seeking extension of the time limit stipulated for deposit. However this court is inclined to consider the contention raised in the writ petition to the extent disputing the liability. In the affidavit filed in support of Ext.P5 application the petitioner had stated that the Excise Commissioner is the custodian of the Head of Account 0039 and that the petitioner has no authority to withdraw any amount from the said Head of Account. It is further mentioned that to execute Ext.P4 order the petitioner has to seek sanction from the Director of Treasuries, through the District Treasury Officer. Therefore, unless an extension of the time to deposit is granted, the petitioner will be put to severe hardships and disciplinary action from higher authorities, is the contention. Therefore it is evident that the only contention raised before the court below is to the effect that the custodian of the account is the Excise Commissioner and that the petitioner has no authority to withdraw any amount from the said account. But in this writ petition the petitioner had raised certain other contentions stating that the Head of Account in question is the 'Budget Receipt Head', meant for remitting money due to Government towards Excise Revenue, including Excise Duty. It is further stated that the amount remitted in that particular Head of Account is only accounted in the Sub Treasury and it is not a deposit and therefore the Sub Treasury officer is not the custodian of the remittance.
7. Learned Government Pleader has to concede before this court that the money deposit under the particular Head of Account is amount belonging to the State Government, who is the judgment debtor. It is true that normally the account can be operated only by the Exercise Commissioner. But when a court of law makes an order of attachment with respect to any money under deposit in any particular Head of Account, the Treasury officer who is holding the money in deposit in that particular account is bound to transmit the amount to the court. In such case, it cannot be disputed that the petitioner is not the custodian of the amounts in deposit in a particular Head of Account. Therefore the dispute to the extent that the petitioner is not a garnishee with respect to the amount in deposit in the treasury in a particular Head of Account, cannot be sustained as legal and valid. On the other hand, if the petitioner has got any case that there is no sufficient amount remaining credit in the particular Head of Account, for fulfilling the liability as ordered in Ext.P4, it is left open to the petitioner to report such facts to the executing court.
8. Under the above mentioned circumstances there is no merit in the dispute raised to the effect that the petitioner is not a garnishee and is not bound to comply with Ext.P4 order. There is no necessity to direct the court below to conduct any adjudication on such dispute on invoking power conferred under Rule 46C.
9. It is noticed that by virtue of an interim order passed by this court on 26-10-2009, the land acquisition authorities of the State was directed to make deposit of a sum of Rs.2,00,000/- before the execution court. Learned counsel for the respondent conceded that the amount was deposited and he was permitted to withdraw the said amount.
10. Considering the relief sought for in Ext.P5 application, while dismissing the writ petition, the petitioner is granted time of 2 weeks from the date of receipt of a copy of this judgment, to comply with the directions contained in Ext.P4 order.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge