ORAL ORDER:

This revision under Article 227 of the Constitution is directed against the order dated 22-09-2008 passed in E.A.No.32 of 2008 in E.P.No.57 of 2007 in O.S.No.57 of 2006 by the I Additional District Judge, East Godvari at Rajahmundry whereby the application filed by the petitioner/garnishee under Order XXI Rule 46-C r/w 151 CPC to discharge the petitioner as the garnishee and absolve him from any liability has been dismissed.

The facts, which give rise for filing this revision and which are not in dispute, are as under:

For the sake of convenience the parties are referred to as arrayed in the court below.

The 1st respondent/decree-holder filed the above suit against the 2nd respondent/defendant for recovery of Rs.18,43,049/-and along with the suit I.A.No.1709 of 2006 was filed under Order XXXVIII Rule 5 CPC wherein the Court by order dated 19-10-2006 ordered conditional attachment of the amount lying with the petitioner/garnishee, who was arrayed as second respondent in the said I.A. The sole defendant remained ex-parte. The 2nd respondent herein put up his appearance and filed a counter admitting the availability of the amount of Rs.4,61,118/- payable to the 2nd respondent. The said I.A. was allowed on 12-04-2007 attaching the amount lying with the petitioner to a tune of Rs.4,61,118/- with a direction to deposit the said amount. Since the defendant remained ex-parte, suit was decreed in favour of the decree-holder on the same day. Later the decree-holder filed E.P. requesting the Court to send the attached amount in I.A.No.1709 of 2006 from the garnishee. On filing such E.P. the Executing Court issued attachment order under Rule 46-A of Order XXI CPC but the petitioner/garnishee has not send the amount and later filed the above E.A.No.32 of 2008 contending that petitioner entrusted 15,690 Kgs. of coconut oil value at Rs.5,39,350/- to the 2nd respondent/judgment debtor vide consignment note No.63925 dated 08-09-2006 to be transported from Kanjikode to Bangladesh border. The 2nd respondent/judgment debtor handed over the consignment to the 1st respondent to be delivered to Bangladesh border and the 2nd respondent neglected to perform the contractual obligations and illegally withheld the consignment at Rajahmundry without informing to the petitioner. Then the decree-holder filed I.A.No.327 of 2007 in O.S.No.57 of 2006 seeking appointment of advocate receiver to take possession of oil tanker containing coconut oil covered by consignment dated 08-09-2006 falsely averring as if the coconut oil belongs to the judgment debtor. The 1st respondent/decree-holder has not pressed the said application on 16-06-2007. Since the petitioner was not made a party to I.A.No.327 of 2007 though the respondents knew that the petitioner is the owner of the oil, deliberately failed to perform contractual obligation by the judgment debtor. The amount supposed to pay to the 2nd respondent/judgment debtor has to be deducted by the petitioner from the amounts payable to it and since the value of the goods is more than the value payable, they are not liable to pay any amount.

The lower court by the impugned order dismissed the E.A. holding that the petitioner/garnishee undertook to deposit the amount and the contention put forward by it is devoid of merit. Hence the present revision.

Learned counsel for the petitioner strenuously contended that garnishee is entitled to prove debt owed to him by judgment debtor for the purpose of set off the claim, the same has to be adjudicated by the Court. In support of the same, reliance is placed on the judgments in SATYANARAYANAMURTHY v. VENKATESWARARAO AIR 1937 Madras 848 and in ADITYA ELECTRONICS v. A.S.IMPEX LIMITED 2004 (2) ALD 779 = 2004 (4) ALT 50.

On the other hand, learned counsel for the respondents contended that Order XXI Rule 46-C CPC application is not maintainable because before making attachment of the amount lying with the garnishee a notice was issued to him in I.A.No.1709 of