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High Court of KeralaSingle JudgeQuashed; no costs.

Susheela K.V. v. Ramachandrapanicker and Kalyanakrishnan

Case / Petition Number:OP(C) No.3797 of 2012

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Ashok Menon
Judgment Date
2019-07-16
Court Decision / Holding
The petition is allowed; the impugned order of the Munsiff Court, Ottappalam dated 10.08.2012 is quashed under Article 227 of the Constitution. No costs.
Final Disposition
Quashed; no costs.

Parties to the Case

Appellants / Petitioners

  • Susheela K.V.

Respondents

  • Ramachandrapanicker
  • Kalyanakrishnan

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri G. Sreekumar (Chelur)
  • • Sri. Preethi Karunakaran
  • • Sri Ravi K. Pariyarath

Counsels for Respondents

  • • Sri Benny Varghese (Pallivathukal)
  • • Sri Peeus A. Kottam

Case Synopsis & Summary

Susheela K.V., the headmistress of Govt. Higher Secondary School, Cheruthuruthy, challenged an attachment order issued by the Munsiff Court, Ottapalam, in EP 111/2011 in OS 31/2008, obtained by the decree holder to enforce a debt from the judgment debtor. As garnishee, the petitioner was directed to withhold Rs. 3,919 per month from the 2nd respondent’s salary for 23 months and remit to the court, while the 2nd respondent allegedly faced prior attachments and disciplinary actions and later transfer. The petitioner contended procedural irregularities and lack of jurisdiction for Ottappalam to attach her salary, arguing non-compliance with Order 21, Rule 46B and the absence of a proper show-cause opportunity. She stated she was ignorant of court proceedings and relied in bona fide fashion on a letter informing the 2nd respondent’s transfer to claim compliance would suffice. The Munsiff then ordered attachment of the entire amount due from the judgment debtor to be realized from the garnishee, without giving the garnishee a notice under Rule 46A. Relying on Executive Engineer v. Sharma (1988 KHC 189), the High Court held that notice to the garnishee is mandatory and that prior service is required; since it was not provided, the impugned order was unsustainable. The petition was therefore allowed, quashing the Munsiff’s order under Article 227 and awarding no costs.

Provisions of Law Cited

Code of Civil Procedure (CPC)Order 21, Rule 46Order 21, Rule 46AOrder 21, Rule 46BO.5 R.30 CPC (Order V Rule 30)Rule 46E (cited in Sharma case)Article 227 of the Constitution of India

Legal Doctrines & Maxims

  • Natural justice / due process
  • Garnishee notice before attachment is mandatory
  • Bona fide belief does not substitute for proper procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended that the garnishee attachment order issued by the Munsiff Court (Ottapalam) violated procedural norms under Order 21, Rule 46A and 46B, since the garnishee was not given an opportunity to show cause or to pay into court. She argued absence of proper service or notice prior to attaching the salary, and questioned the court’s jurisdiction to attach the petitioner’s salary as she resided outside the court’s territorial jurisdiction. The petitioner also asserted that reliance on a transfer notice (Ext.P5) did not satisfy the requirements of due process, and highlighted the prior attachments and ongoing disciplinary actions against the judgment debtor as context supporting her non-compliance.

Contentions of Respondents

The respondents argued for enforcement of the decree through attachment of the judgment debtor’s salary via the garnishee. They asserted that the garnishee was liable to pay the decree debt and that the court’s attachment order was a legitimate step in realization of the decree. They relied on the underlying decree and attachment mechanisms under Order 21 to justify the garnishee’s responsibility to comply and to remit the amounts due, as the court had already issued notices to enforce the decree against the debtor.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Executive Engineer v. Sharma1988 KHC 189PositiveThe High Court relied on this decision to emphasize that a garnishee must be served with notice under Rule 46A before any attachment, and that failure to issue such notice renders the order unsustainable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** ## **OP(C).No.3797 of 2012** **AGAINST THE ORDER/JUDGMENT IN EP 111/2011 IN OS 31/2008 of MUNSIFF COURT, OTTAPPALAM** ## **PETITIONER:** **SUSHEELA K.V., HEAD MISTRESS, GOVT. HIGHER SECONDARY SCHOOL, CHERUTHURUTHY, AGED 53 YEARS, W/O.RAVINDRANKARUVARIL, RESIDING AT "VARADHA", CHUDUVALATHUR, SHORANUR, PALAKKAD DISTRICT, PIN-679121.** **BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.RAVI.K. PARIYARATH** ## **RESPONDENTS:** **1 RAMACHANDRAPANICKER, S/O.LATE MADHAVAPANICKER, VEMBALATHUPADAM KALARIKKAL VEETTIL, KURUVATTOOR AMSOM, KAYILYAD DESOM, OTTAPALAM-679001. 2 KALYANAKRISHNAN, S/O.LATE BALAKRISHNAPANICKER VEMBALATHUPADAM KALARIKKAL VEETTIL, KURUVATTOOR AMSOM, KAYILYAD DESOM, OTTAPALAM-679001.** **BY ADVS. SRI.BENNY VARGHESE (PALLIVATHUKKAL) SRI.PEEYUS A.KOTTAM** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.04.2019, THE COURT ON 16.07.2019 PASSED THE FOLLOWING:** _O.P.(C) No. 3797 of 2012_ 2 ## **JUDGMENT** The petitioner was the Head Mistress of Govt.HSS, Cheruthuruty. E.P.No.111/2011 in O.S.No.31/2008 was filed before the Munsiff Court, Ottappalam by the 1[st] respondent, who is a decree holder in that suit to execute the decree against the 2[nd] respondent, who is the judgment debtor. It is alleged that while the 2[nd] respondent was working at the Govt. HSS, Cheruthuruthy, attachment of his salary was sought. The petitioner, as the Head Mistress of the School, was asked to withhold the salary of the 2[nd] respondent at the rate of Rs.3,919/- per month for a period of 23 months and to deposit the same in the court vide Ext.P1 order dated 22.12.2011. The petitioner did not comply with the order. Rs.4,000/- out of the salary of the 2[nd] respondent was already under attachment pursuant to an order of the Munisiff Court, Thrissur in O.S.No.1287/2004. There were several other deductions as well. The 2[nd] respondent had undertaken that he will take suitable steps to get the attachment order waived _O.P.(C) No. 3797 of 2012_ 3 on making appropriate representation before the Munsiff Court, Ottapalam. The 2[nd] respondent was also in a habit of creating unpleasant situation in the school, regarding which several complaints lodged with the Deputy Director of Education, Thrissur. Disciplinary actions are also pending against him. Ext.P2 is one such disciplinary proceeding initiated against the 2[nd] respondent. It is for this reason that the petitioner could not comply with the orders of attachment. Thereafter, notice was served on her to show cause and appear before the court on 10.08.2012 at 10.30 AM vide Ext.P3. In the meanwhile, the 2[nd] respondent got transferred from the Cheruthuruthy School to Govt. HSS, Chelakkara and he was relieved from the post on 09.05.2012 vide Ext.P4. A letter was sent to the Munsiff Court, Ottapalam by the petitioner disclosing these facts on 23.07.2012, a copy of which is Ext.P5. The petitioner being ignorant about the court proceedings was under the _bona fide_ belief that the letter sent to the court intimating the 2[nd] respondent's transfer would be sufficient compliance of the show _O.P.(C) No. 3797 of 2012_ 4 cause notice. The letter received from the Munsiff Court, Ottappalam was also forwarded to SMTHS, Chelakkara vide Ext.P6 letter. 2. The petitioner came to know about the order of attachment of her salary only when she was intimated by the Sub Treasury Officer, Wadakkancherry about it. 3. It is submitted that the petitioner is residing outside the jurisdiction of the Munsiff Court, Ottappalam and that her salary could not have been ordered to be attached by the Ottapalam court. The petitioner also points out to the procedural irregularities. Order 21, Rule 46B of the Code of Civil Procedure has not been complied with, and the Munsiff Court has directly ordered realisation of the decree debt from the petitioner stating that she is a garnishee liable to pay the amount. No opportunity has been given to explain the circumstances under which the court order could not be complied with. 4. Heard Counsel appearing for the petitioner and the 1[st] respondent. _O.P.(C) No. 3797 of 2012_ 5 5. The learned Munsiff after passing the attachment order under Order 21, Rule 46, issued notice to the petitioner as garnishee liable to the amount due, calling upon her to pay the decree debt due from the judgment debtor, or so much thereof as may be sufficient to satisfy the decree and the costs of execution as she did not appear to show cause why she should not be asked to do so. 6. The petitioner, as garnishee, admittedly did not appear before the court to give an explanation as to why the amount could not be attached. If there were other attachments, that fact should have been brought to the notice of the Court. 7. But the next order by the court was to attach the entire amount due from the judgment debtor to be realised from the garnishee. In _**Executive Engineer v.**_ _**Sharma, 1988 KHC 189**_ , a Division Bench of this Court held as follows: _“8. We find that the executing court at no stage had taken care to issue notice to the garnishee under R.46A calling upon him either to pay the money into court or to show cause why he should not do so. The only endorsement on the execution petition is that letter was sent to him. Learned counsel for the decree holder invites our attention to O.5 R.30 C.P.C. and contends that letter must be deemed to be notice._ _O.P.(C) No. 3797 of 2012_ 6 _This rule enables the court to substitute for a summons a letter signed by the Judge or an appointed officer where the defendant is, in the opinion of the court, of a rank entitling him to such mark of consideration. However, the letter shall contain all the particulars required to be stated in the summons. The rule applies to summons and not to notice. Office copy of the letter sent to the appellant is seen in the file. Letter dated 29-6-1984 refers to the attachment before judgment, that is prohibitory order and states:_ _“In continuation of the Order under reference, I request that the amount may be sent to this court for giving credit to the concerned suit.”_ _The reminder letter dated 26-7-1984 does not refer to any earlier order. But nevertheless it states thus:_ _“Please refer to the order cited. Neither a reply nor any amount has been received so far. Hence I request you to let me know the result immediately failing which steps under O.21 R.46-E C.P.C. will follow. The case stands posted to …...”_ _These letters do not contain any of the particulars required to be stated in the summons or notice and therefore would not attract R.30 of Order V. We are therefore of the opinion that prior to the passing of the impugned order garnishee was not served with a notice under R.46A. Notice was not ordered to the garnishee either in the E.P. or in the E.A. referred to earlier.”_ 8. In the instant case also, after not responding to the original notice of attachment, the court had directly ordered attachment of the amount due to the judgment debtor to be realised from the garnishee. The court was incumbent to issue a notice under Rule 46B calling upon the garnishee to pay the amount within a stipulated time and only then, could there have been an order to the Treasury Officer to realise the amount _O.P.(C) No. 3797 of 2012_ 7 from the salary of the petitioner to be remitted in the court. Without having done so, the impugned order is not sustainable. Hence, the petition is allowed and the impugned order of the Munsiff Court, Ottappalam dated 10.08.2012 is hereby quashed under Article 227 of the Constitution. No costs. **Sd/ASHOK MENON** _dkr_ **JUDGE** _O.P.(C) No. 3797 of 2012_ 8 ## **APPENDIX** **EXHIBIT P1 COPY OF THE ORDER OF ATTACHMENT OF SALARY OF THE 2ND RESPONDENT, ISSUED IN E.P.NO.111/11 IN O.S. NO.31/08 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM, TO THE PLETITIONER DATED 22.12.2011. EXHIBIT P2 COPY OF THE HEARING NOTICE ISSUED TO THE PETITIONER IN RESPECT OF THE DISCIPLINARY PROCEEDINGS AGAINST THE 2ND RESPONDENT DATED 24.04.2012. EXHIBIT P3 COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER IN E.P.NO.111/11 IN O.S.NO.31/08 ON THE FILE OF THE MUNSIFF COURT, OTTAPPALAM DATED 20.07.2012 EXHIBIT P4 COPY OF THE RELIEVING ORDER IN RESPECT OF THE 2ND RESPONDENT ISSUED AT THE INSTANCE OF THE PETITIONER DATED 09.05.2012. EXHIBIT P5 COPY OF THE LETTER SENT AT THE INSTANCE OF THE PETITIONER TO THE LEARNED MUNSIFF, OTTAPALAM DATED 23.07.2012. EXHIBIT P6 COPY OF THE LETTER SENT AT THE INSTANCE OF THE PETITIONER TO THE HEAD MASTER, S.M.T.H.S., CHELAKKARA WITH RESPECT TO THE ATTACHMENT OF SALARY OF THE 2ND RESPONDENT DATED NIL. EXHIBIT P7 COPY OF THE ORDER PASSED IN E.P.NO.111/11 IN O.S.NO.31/08 DATED 10.08.2012 ON THE FILE OF THE MUNSIFF COURT, OTTAPALAM.**