Case Note & Summary
The petitioner, Smt. Sarasamma C., filed a writ petition under Article 227 of the Constitution of India challenging the order dated 21.01.2023 passed by the LXXXVII Additional City Civil and Sessions Judge (Exclusive Dedicated Commercial Court), Bengaluru in Commercial Execution No.2673/2018. The impugned order allowed I.A.No.2 filed by the 1st respondent (Karnataka State Finance Corporation), the decree holder, under Section 151 CPC seeking attachment of a sum of Rs.95 lakhs deposited in O.S.No.6229/2017 before the City Civil Court. The petitioner was a judgment debtor in the execution proceedings. The Commercial Court allowed the application, directing attachment of the said amount. The petitioner contended that the amount deposited in another suit is a debt not in the possession of the judgment debtor and could only be attached under Order 21 Rule 46 CPC, not under Section 151 CPC. The High Court agreed, holding that the inherent powers under Section 151 cannot be used to circumvent the specific procedure under Order 21 Rule 46. The impugned order was set aside, and the petition was allowed.
Headnote
A) Civil Procedure Code - Execution - Attachment of Debt - Order 21 Rule 46 CPC, Section 151 CPC - The decree holder sought attachment of a sum of Rs.95 lakhs deposited in another suit under Section 151 CPC. The Court held that the amount deposited in another suit is a debt not in possession of the judgment debtor and must be attached under Order 21 Rule 46 CPC. The inherent powers under Section 151 cannot be used to bypass the specific procedure. The impugned order was set aside. (Paras 1-5)
Issue of Consideration
Whether the Commercial Court could allow attachment of a sum of Rs.95 lakhs deposited in another suit (O.S.No.6229/2017) under Section 151 CPC without following the procedure under Order 21 Rule 46 CPC.
Final Decision
The writ petition is allowed. The impugned order dated 21.01.2023 passed by the LXXXVII Addl. City Civil and Sessions Judge (Exclusive Dedicated Commercial Court), Bengaluru in Comm.Ex.2673/2018 is set aside.
Law Points
- Attachment of debt not in possession of judgment debtor
- Order 21 Rule 46 CPC
- Section 151 CPC
- Inherent powers cannot be used to circumvent specific provisions
- Execution proceedings
- Commercial Court
Case Details
2024 LawText (KAR) (07) 45
WP No. 3967 of 2023 (GM-CPC)
Sri. M.N. Sheshadri (Senior Counsel for Sri. Varun Gowda) for petitioner, Sri. Bipin Hegde for respondent 1
Karnataka State Finance Corporation, M/s. Ethnic Informatics Pvt Ltd, Badrinarayan S, Smt. Roopa Jagannath, O.N.Ravishankar, O.N.Ramesh Babu
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order in execution proceedings.
Remedy Sought
Setting aside the order dated 21.01.2023 passed by the Commercial Court allowing I.A.No.2 under Section 151 CPC for attachment of Rs.95 lakhs deposited in another suit.
Filing Reason
The petitioner, a judgment debtor, challenged the Commercial Court's order allowing attachment of a sum deposited in another suit without following the procedure under Order 21 Rule 46 CPC.
Previous Decisions
The Commercial Court allowed I.A.No.2 filed by the decree holder under Section 151 CPC for attachment of Rs.95 lakhs deposited in O.S.No.6229/2017.
Issues
Whether the Commercial Court could allow attachment of a sum of Rs.95 lakhs deposited in another suit under Section 151 CPC without following the procedure under Order 21 Rule 46 CPC.
Submissions/Arguments
The petitioner argued that the amount deposited in another suit is a debt not in possession of the judgment debtor and can only be attached under Order 21 Rule 46 CPC, not under Section 151 CPC.
The respondent decree holder contended that the attachment was permissible under Section 151 CPC.
Ratio Decidendi
A decree holder cannot bypass the specific procedure under Order 21 Rule 46 CPC for attachment of a debt not in possession of the judgment debtor by invoking the inherent powers under Section 151 CPC. The inherent powers cannot be used to circumvent the specific provisions of the Code.
Judgment Excerpts
This petition is directed against the impugned order dated 21.01.2023 passed on I.A.No.2 in Commercial Execution No.2673/2018 on the file of the LXXXVII Addl. City Civil Judge, (Exclusive Dedicated Commercial Court), Bengaluru.
The said application filed by the 1st respondent – Decree holder under Section 151 CPC seeking attachment of a sum of Rs.95 lakhs deposited in O.S.No.6229/2017 before the City Civil Court.
Procedural History
The 1st respondent (decree holder) filed I.A.No.2 under Section 151 CPC in Commercial Execution No.2673/2018 seeking attachment of Rs.95 lakhs deposited in O.S.No.6229/2017. The Commercial Court allowed the application on 21.01.2023. The petitioner (judgment debtor) challenged this order by filing WP No.3967/2023 under Article 227 of the Constitution of India before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 151, Order 21 Rule 46
- Constitution of India: Article 227
