Edigineni Gurrappa Naidu, vs Gundavarapu Pattabhi Rami Reddy,
2021 Latest Caselaw 2694 AP

             THE HONOURABLE SRI JUSTICE D.RAMESH

            CIVIL REVISION PETITION No.1188 of 2020

ORDER:

The Petitioner herein is the D.Hr in E.P.No.221/2018 in

O.S.No.290/2018.

2. The present revision is filed aggrieved by the orders dated

12.12.2019 in E.P.No.221/2018 in O.S.No.290/2018 on the file of the

I Additional Senior Civil Judge, Nellore.

3. The petitioner is the D.Hr and he filed suit in O.S.No.290/2018

on the file of the I Additional Senior Civil Judge, Nellore against the

respondent herein for recovery of an amount of Rs.7,32,164/-. He

also filed an application under Order XXXVIII Rule 5 of CPC and the

same is numbered as I.A.No.436/2018 in O.S.No.290/2018 for

attachment before judgment against the retirement benefits of the

respondent herein and the same was allowed by order dated

09.10.2018. Subsequently, the said suit was decreed on 10.10.2018

exparte.

4. The petitioner herein filed E.P.No.221/2018 under Order XXI

Rule 52 CPC for realization of the decretal amount i.e. Rs.7,67,703/-,

as the amounts are already lying in the hands of the Garnishee i.e.

Depot Manager, Depot-II, A.P.S.R.T.C., Nellore. After notice,

garnishee has filed a detailed report stating that approximately an

amount of Rs.2,55,500/- belonging to J.Dr was available but there is

a prohibitory order existing by an attachment order dated 19.3.2018

in I.A.No.168/2018 in O.S.No.106/2018 to with hold the said

retirement benefits.

5. Though in the present case, the attachment of retirement

benefits was ordered in I.A.No.436/2018 on 20.8.2018, but even

DR,J CRP.No.1188 of 2020

before the said amounts were attached in another suit in

I.A.No.168/2018 in O.S.106/2018 on 13.02.2018. Hence the

Garnishee has returned the warrant saying that the said amounts

were attached in another suit. Considering the said letter, the court

below has closed the present E.P.No.221/2018. Learned Counsel

appearing on behalf of the petitioner has submitted that the suit in

O.S.No.106/2018 is a collusive suit which is filed only to defeat the

decree of the petitioner. In fact third parties have filed suit against

the defendant/respondent herein and got attached the amount in

I.A.No.168/2018. Despite decree in O.S.No.221/2018, they have not

filed any E.P itself shows that it is a conclusive one to defeat the

present petition, they have attached the retirement benefits of the

respondent herein and further submitted that the lower court has to

consider that the attachment is not the criteria, who files E.P. they

have first right to execute the attachment.

6. In the instant case, the parties in the said suit have not filed E.P

so far. Hence the attachment in favour of the petitioner has right to

execute. To support his contention he relied on the judgment of the

Madhya Pradesh High Court reported in Hakimuddin Abdul Hussain vs.

Gulam Ali Daudbhai and Anr1 wherein the issue is that the property is

under attachment by virtue of the provisions of the order and a

decree is subsequently passed in favour of the plaintiff, it shall not be

necessary upon an application for execution of such decree to apply

for a re-attachment of the property. But in the instant case, the issue

is with regard to prior order of an attachment of the respondent's

pensionary benefits. In view of the above, the said judgment is not

applicable to the facts of the case.

AIR 1963 MP 261

DR,J CRP.No.1188 of 2020

7. In the instant case, the issue is with regard to prior order of an

attachment of the respondent's pensionary benefits. Even according

to Order XXI Rule 48(2) CPC it is clear that the salary or allowance is

already being with held and remitted to a court in pursuance of a

previous and unsatisfied order of attachment, the officer appointed by

in this above, shall be forthwith returned subsequent to the court

issuing it with a full statement of all the particulars of the existing

attachment. In view of the above said provision, once, the

attachment is existing, the 2nd attachment is not able to realize the

amounts. In fact when the second attachment order is passed, the

authorities have to intimate the same to the concerned court. But

here in the case on hand, it is not in dispute that already there is an

attachment in I.A.No.168/2018 in O.S.106/2018 on 19.3.2018 much

prior to the attachment made in favour of the petitioner in

I.A.No.436/2018 on 20.8.2018.

8. In view of the above, the findings of the Court below are in

accordance with law. There are no merits in the Revision Petition.

Accordingly, the same is dismissed.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Civil Revision Petition shall stand closed.

________________ JUSTICE D. RAMESH Date: 28.7.2021 RD

DR,J CRP.No.1188 of 2020

THE HONOURABLE SRI JUSTICE D.RAMESH

CIVIL REVISION PETITION No.1188 of 2020

Dated 28.7.2021

RD