The garnishee who is directed to pay any sum of money does not pay the amount - the remedy is execution and not to initiate any action for contempt or disobedience.

Citation

CDJ 2009 SC 588

Food corporation of India vs Sukh deo prasad

Head Note

Civil Procedure Code - Order 39 Rule 2A - What is the purport and effect of the order dated 27.5.1996 described by the trial court and the High Court as the ‘injunction order' - Whether the respondent, who was the first defendant in the mortgage suit filed by the bank, could maintain an application under order 39 Rule 2A of the Code for the alleged disobedience by FCI (a co-defendant), of the order dated 27.5.1996 made in an application filed by the plaintiff bank - Whether the trial court was justified in allowing such application under Order 39 Rule 2A of the Code, holding that FCI was liable to pay the rents for three godowns from December, 1983 to 31.3.1996 and interest thereon and direct attachment of the assets of FCI to an extent of Rs.1,12,24,792.99 - Whether the High Court was justified in disposing of FCI's appeal in a summary manner - The application dated 12.1.1996, on which the order dated 27.5.1996 was passed, did not fall under Rule 1 of Order 39 as the prayer therein did not relate to any of the three matters mentioned in clauses (a), (b) and (c) of the said rule. It did not also fall under Rule 2 of Order 39 as admittedly there was no contract between the bank and FCI nor any allegation that FCI was committing any injury of any kind to the bank. Therefore, the order dated 27.5.1996 was not an order under either Rule 1 or Rule 2 of Order 39 of the Code. The suit itself was for recovery of the amounts due by the borrowers, by sale of the mortgaged properties belonging to the borrowers (defendants 1 to 3) and to recover the balance personally from the borrowers and guarantors (defendants 1 to 6). When FCI was subsequently added as seventh defendant at the instance of defendants 1 to 3, no relief was sought against FCI nor was the prayers amended seeking any decree against FCI. If there was no prayer in the suit against FCI, obviously no interim relief could have been sought against FCI as a defendant. Even assuming that the final relief was sought against FCI also, the position is that FCI was only a ‘garnishee defendant' and not a ‘principal defendant'. The order dated 27.5.1996 was not an injunction order, but an interim prohibitory (garnishee) order by way of attachment before judgment, in regard to the rents payable for one godown taken by it on lease in June, 1994 - As the interim order dated 27.5.1996 was not made on an application made by the respondent and as the interim order was not intended for the benefit to the respondent who was the first defendant in the suit, he could not be said to be a person aggrieved by the alleged disobedience or breach of the order dated 27.5.1996 - It is shocking that the trial court had entertained an application under Order 39 Rule 2A from a person who was not entitled to file the application, has accepted an interpretation of the order which does not flow from the order, and has created an liability where none existed, resulting in attachments of the assets of FCI to an extent of more than Rs.1.12 crores. The order dated 15.12.2004 cannot be supported or sustained under any circumstances - When a huge liability of Rs.1,12,24,792.99 was sought to be created on the FCI in a proceedings under Order 39 Rule 2A, the High Court did not even bother to refer to the facts and merits, and chose to summarily dispose of the appeal thereby allowing perpetration of a patent abuse of process of court by the respondent. The travails of the FCI could have been avoided if the trial court and the High Court had been diligent to ensure that its process were not misused and abused by the respondent - Therefore allow this appeal with costs of Rs.25,000/- payable by respondent, set aside the order of the High Court and the trial court and dismiss the application filed by the respondent under Order 39 Rule 2A of the Code.

Para 17 to 19, 23 to 27

Comparative Citations:
2009 (5) SCJ 31, 2009 (5) SCC 665, 2010 (1) LW 874, 2009 (1) CLR 921, 2009 AIR(SC) 2330, 2009 AIR(SCW) 3135,