This writ petition is filed under articles 226 and 227 of the constitution of India praying to quash the impugned order dt. 13.11.08, of the Prl. Civil Judge (Jr.Dn.), Davanagere vide Annexure-E passed in Ex-Case No.105/98, with a direction not to proceed against the petitioner, by allowing this WP with costs.

The facts in brief relevant for the purpose of this petition are as under:

2. The parties will be referred as per their rank before the Executing Court. The Respondent No.1 herein is the Decree Holder whereas Respondents 2 (a) to (e) are the Judgment Debtors and the petitioner herein is a Garnishee. The Decree Holder initially instituted O.S.No.4/1971 against the Judgment Debtor seeking recovery of an amount of Rs.30,438-17 with interest at 12% p.a., The said suit came to be transferred to the Addl.Civil Judge, (Jr.Dn.), Davanagere and was renumbered as O.S.No.24/1971. In O.S.No.24/1971, the Court passed an order of attachment of Rs.40,000/- from the account of the Judgment Debtor maintained by the petitioner bank. A telegram dated 15.5.1971 was sent to the Bank indicating the attachment. The suit bearing O.S.No.24/1971 was again transferred to the Court of Civil Judge (Jr. Dn.) and was renumbered as O.S.No.32/1975. Thereafter, on 30-01-1979, the suit was dismissed on merits and an appeal was preferred against the dismissed of the suit and the said appeal came to be allowed and the matter was remanded back to the Trial Court. In the circumstances, again the suit was renumbered as O.S.No.457/1997 and under the judgment and decree recovery of the money claimed, was granted and the order of attachment made earlier was made absolute.

Thereafter, the Decree Holder filed Execution Case No.105/1998 for the recovery of the decreetal amount as per the decree dated 22.6.1998 in O.S.No.457/1997 and in the circumstances, the Decree Holder sought for an order to transfer the amount of Rs.40,000/- from the petitioner Bank to the Court for payment. Thereafter, a show cause notice was issued to the Bank for not complying the order dated 9.4.2003. The petitioner Bank filed CRP 1854/2003 against the order dated 29.05.2003 in the execution case and the attachment order dated 9.4.2003, was conditionally stayed by this Court in CRP 1854/2003 on deposit of Rs.40,000/-. The revision petition was disposed of by setting aside the order of the Executing Court and remitting the matter to the Executing Court with a liberty to the petitioner Bank to putforth its say before the Executing Court. It is under these circumstances that the petitioner Bank filed its objections raising different contentions and stating that an order to call for the amount of Rs.40,000/-cannot be granted. The Executing Court heard the counsel for the parties and on appreciation of the material on record has passed the impugned order directing the petitioner Bank to deposit Rs.40,000/-within 15 days from the date of the order. Aggrieved by the same, the present writ petition has been filed.

3. I have heard the learned counsel for the petitioner and also the respondent. The point that arise for my consideration is:

“1. Whether the order directing the petitioner to deposit Rs.40,000/- in pursuance of the attachment order in O.S.No.24/1971 is legal and valid?”

2. Whether the petitioner has made out any grounds to call for any interference?

4. It is not in dispute that after an order of attachment of Rs.40,000/- in O.S.No.24/1971 a telegram was sent by the Executing Court to the Bank on 15.5.1971. It is necessary to refer to the provisions of Order 38 Rule 9, CPC which is extracted hereunder:

“9. Removal of attachment when security furnished or suit dismissed.

Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.” (underline is mine)

So as could be seen from this provision,