Vinayaka Vs. Laxmanappa and Others - Court Judgment

Excerpt:

- code of civil procedure, 1908. order 21, rule 46: [s.r. bannurmath & jawad rahim, jj] application under -attachment and prohibitory order for disbursement of the amount in rfd account of the judgment debtor maintained by the appellant bank order passed by the executing court held, order 21, rule 46a provides that the courts may in case of a debt, which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due so as to satisfy the decree in question. the appellant is a garnishee of the judgment debtor is not in dispute. the executing court was justified in passing the impugned order. it is to be noted that mere prohibition under karnataka co-operative societies act as per the provisions of rule 23(3) cannot prohibit the court from exercising the jurisdiction as contemplated under c.p.c., further, the condition imposed under rule 23 of the rules is in respect of the operation of the account by the depositor and does not prohibit any debtor from obtaining the orders under order xxi rule 46-a c.p.c., it is to be noticed that under section 101(1)(a)..........of the additional civil judge (junior division), hubli, this revision petition is preferred.2. respondents 1 and 2 have filed the application under order 6, rule 17 read with section 151 of the cpc seeking the permission to amend the plaint at para (e) of the prayer column.3. it is stated that the respondents 1 and 2 have instituted the suit against the defendants for the relief of declaration and consequential injunction. now the application is filed for amendment of relief columnat para (e) stating that if the plaintiffs are not in actual possession of the suit property, a decree for recovery of possession of the suit property be allowed by holding that the plaintiffs-tenants have been illegally evicted by the first defendant-landlord.4. it is also stated that the plaintiffs are liable to pay court fee under section 41(d) of the karnataka court fees and suits valuation act and the said relief is valued for rs. 24,000/-. this application (i.a. i) is resisted by the defendants contending that the proposed amendment is not necessary to adjudicate the dispute between the parties. they further contend that the plaintiffs by virtue of the lease deed are in possession of the suit.....

Judgment:

ORDER

1.Being aggrieved by the order dated 15-3-2000 passed on I.A. XIX in O.S. No. 325 of 1996 on the file of the Additional Civil Judge (Junior Division), Hubli, this revision petition is preferred.

2. Respondents 1 and 2 have filed the application under Order 6, Rule 17 read with Section 151 of the CPC seeking the permission to amend the plaint at para (e) of the prayer column.

3. It is stated that the respondents 1 and 2 have instituted the suit against the defendants for the relief of declaration and consequential injunction. Now the application is filed for amendment of relief columnat para (e) stating that if the plaintiffs are not in actual possession of the suit property, a decree for recovery of possession of the suit property be allowed by holding that the plaintiffs-tenants have been illegally evicted by the first defendant-landlord.

4. It is also stated that the plaintiffs are liable to pay Court fee under Section 41(d) of the Karnataka Court Fees and Suits Valuation Act and the said relief is valued for Rs. 24,000/-. This application (I.A. I) is resisted by the defendants contending that the proposed amendment is not necessary to adjudicate the dispute between the parties. They further contend that the plaintiffs by virtue of the lease deed are in possession of the suit property and now the relief sought for are inconsistent with the pleas and pleadings. As such the application is not maintainable. It is specifically contended that this application is barred by the time as per Section 6 of the Specific Relief Act.

5. The learned Civil Judge, Junior Division has discussed the averments and the objections. I find one lacuna in this order viz., why has the learned Judge not discussed the decisions cited by the defendants. In my opinion the lower Court has not properly applied its mind. It is also pertinent to note that it has only taken note of the decisions cited by the respondents 1 and 2. It goes without saying that there is improper application of the mind. The conclusion may be right or wrong but all the materials that are placed on the record should be discussed in proper perspective. Hence, in my opinion this matter is required to be remanded for reconsideration. The lower Court is also directed to follow the decisions cited by both the sides. Hence, the following order:

The impugned order is set aside. The matter is remanded back for reconsideration of I.A. XIX and to proceed in accordance with law.