The court below did not issue notice to the garnishee under R.46A. The court below did not consider the merits of the dispute raised by the appellant. The court set aside the impugned order and remanded the proceedings for fresh disposal in accordance with law.

1. The first respondent herein obtained a money decree against the second respondent in O. S.390 of 1981 of the Sub Court, Trivandrum on the basis of a compromise. At the instance of the decree-holder attachment before judgment was effected of certain sum of money said to be belonging to the judgment-debtor in the hands of the appellant herein. Executive Engineer of the K. S. E. Board. The decree-holder subsequently filed execution petition under Order XXI R.46A CPC. He filed E. A. 566/84 seeking direction to the appellant to remit the amount in court. The application was opposed by the appellant, but was allowed by the executing court. Hence this appeal.

2. In the court below appellant contended, inter alia, that the amount in his hands is the security amount deposited by the judgment-debtor, that the judgment-debtor abandoned contract and thereby the Board sustained huge loss, final liability has not been fixed and on a proper computation the Board would owe no money to the judgment-debtor and on the other baud substantial amount would be due to the Board from the judgment-debtor. The court below held that these contentions were not available to the appellant. The court below also took the view that the garnishee had no case that he is not the garnishee. Thus the objection were overruled

3. Learned counsel for the appellant would re-iterate the contentions raised in the court below. He also contends that the court below was in error in holding that appellant could not raise the objections at that stage. Learned counsel for the decree-holder would contend that the appellant did not raise objections when attachment before judgment was effected, that he did not raise any objection in response to notice under R.46A of Order XXI C.P.C. and therefore he could not be all owed to raise his objections thereafter.

4. Attachment before judgment was effected under Order XXXVIII R.5 C.P.C. Since the attachment was of a sum of money allegedly belonging to the judgment-debtor and lying in the bands of the appellant, it would have been effected by way of prohibitory order. R.11A of Order XXXVIII states that the provisions of the Code applicable to an attachment made in execution of the decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of R.11. According to R.11, where property is under attachment by virtue of the provisions of Order XXXVIII, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.

5. Attachment of debt in execution of a decree is dealt with in R.46 of Order XXI. Attachment is to be made by written order prohibiting the creditor from recovering the debt and the debtor from making payment thereof until further orders of the court. Sub rule (3) of R.46 states that the debtor so prohibited may pay the amount of debt into court. This is only an enabling provision. There is nothing in R.46 which compels the debtor to pay the amount of debt into court.

6. The further procedure is dealt with by R.46A onwards. R.46A, 46B and 46C as they apply in this State read as follows:

46A. Procedure when debt or any movable property not in the possession of the judgment-debtor. The Court may, in the case of any debt due to the judgment-debtor (other than debt secured by a mortgage or a charge or by negotiable instrument), or any movable property in which he has an interest, but not in his possession, which has been attached under R.46 of this Order, upon the application of the attaching creditor, issue notice to any person liable to pay such debt or deliver an account for such movable property (such person to be hereinafter called the 'garnishee' calling upon him either to pay or deliver into court the debt due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy