Telangana High Court
V. Sadanand vs G. Bhagya Prakash Mani And 2 Others on 9 June, 2022
Bench: Ujjal Bhuyan
1
THE HON'BLE SRI JUSTICE UJJAL BHUYAN
CIVIL REVISION PETITION No.1092 OF 2022
ORDER:
Heard learned counsel for the petitioner.
2. Petitioner is aggrieved by docket order dated 30.03.2022
dismissing the interlocutory application filed by him being
I.A.No.85 of 2022 in O.S.No.946 of 2022 pending before the
XIX Junior Civil Judge, City Civil Court, Hyderabad.
3. It is a suit instituted by the petitioner as the plaintiff for
recovery of money. Petitioner also filed an interlocutory
application i.e., I.A.No.85 of 2022 seeking attachment of
amounts lying in the Office of the Principal Accountant
General, Senior Auditor (Bills), Andhra Pradesh in respect of
defendant No.1 G. Bhagya Prakash Mani who is working in
the said establishment. The above prayer was made under
Order 21 Rule 46 CPC. However, by the docket order dated
30.03.2022, I.A No.85 of 2022 has been dismissed on the
ground that the petition ought to have been filed under Order
38 Rule 5 CPC and not under Order 21 Rule 46 CPC.
4. Docket order dated 30.03.2022 reads as under:-
"I.A.No.130/2022 is allowed. Matter is
advanced from 06.04.2022 to this date.
Heard the learned counsel for the petitioner. It
is the contention of the petitioner that the respondent
is working as an employee in the office of the Principal
Accountant General, A.P. It is further the contention
that the respondent is due to an extent of
Rs.2,50,000/- to the petitioner herein. The petitioner
therefore intends this Court to issue warrant as
against the garnishee of the respondent, attaching the
amount lying in the office of the Principal Accountant
General and to remit the same into the credit of the
above suit.
It is to be noted that Order 21 Rule 46 CPC
deals with Attachment of debt, share and other
property not in possession of the Judgment debtor.
Execution proceedings Under Order 21 Rule 46 of CPC
pertains to the Judgment debtor after the suit is
decreed in favour of the petitioner/plaintiff. Therefore
this Court is unable to comprehend as to how the
petitioner maintainable when the suit is still at
summons stage. The petitioner ought to have filed a
petition Under Order 38 Rule 5 CPC and not under
Order 21, Rule 46 of CPC. In view of the above
discussion the petition is dismissed".
5. While the learned Court below may be technically
correct in holding that the I.A prayer ought to have been
made by the petitioner under Order 38 Rule 5 C.P.C but, in
the opinion of the Court, the Court below could have treated
the I.A of the petitioner as a petition under Order 38 Rule 5
C.P.C. If a relief sought for is traceable to a valid source of
law, mentioning of wrong legal provision should not disentitle
the party from seeking the relief. It is trite that technicalities
should not come in the way of justice.
6. That being the position and without expressing any
opinion on the merit of the prayer made by the petitioner,
impugned order dated 30.03.2022 is hereby set-aside.
Matter is remanded back to the Court of XIX Junior Civil
Judge, City Civil Court, Hyderabad for passing fresh order in
accordance with law by treating I.A No.85 of 2022 as an
interlocutory application under Order 38 Rule 5 CPC.
7. Civil revision petition is accordingly allowed. No costs.
8. Miscellaneous petitions if any, pending in this civil
revision petition shall stand closed.
____________________
UJJAL BHUYAN, J
Date: 09.06.2022.
vrks
THE HON'BLE SRI JUSTICE UJJAL BHUYAN
CIVIL REVISION PETITION No.1092 OF 2022
Date:09.06.2022
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