A decree-holder is entitled to execute a decree personally against the judgment-debtor in the first instance and if it is not possible to realize the decree debt, the decree-holder is entitled to proceed against the charged property.

The petitioner is one of the sons of the judgement-debtor (1st respondent in E. P. 643 of 1984, X Asst. Judge, City Civil Court, Madras) and 3rd respondent in that execution. The respondent-decree-holder obtained a decree for maintenance in.

O. S. 7927 of 1976 against her husband, Narayanan. The decree also provided a charge over the property No. 91 Venkatarangam Pillai St. Triplicane, Madras. The said execution was laid against the legal representatives of her husband viz, his three sons and a daughter, as the judgement-debtor passed away in the meanwhile. The amount claimed is Rs. 18,384-10 after giving credit to the payment of Rs. 20,300. In the execution a sum of Rs. 36,000 standing to the credit of the judgement-debtor and his son, the petitioner in Punjab National Bank, Triplicane, Madras was sought to be attached by issue of a prohibitory order to the bank. All the petitioner's objections were rejected by the Court below and execution was ordered. Hence, this revision.

2. The same grounds are urged even here. The first is that when there is a charge decree, the decree-holder is not entitled to proceed against other assets of the judgement-debtor in the hands of his legal representatives without exhausting her remedy against the charged property. Such a contention is hardly tenable in the teeth of the directions contained in the decree. The decree directed that the defendants do pay the plaintiff at the rate of Rs. 400 per month from the date of suit towards maintenance and that the plaintiff be at liberty to charge the suit property for the due payment of the maintenance amount. The rest of the decree is omitted as not germane for the present purpose. Unlike a mortgage decree which specifically provides that the decree-holder should proceed against the hypotheca and should there be any shortfall, the decree-holder can proceed against the judgement-debtor personally, this decree enabled the decree-holder to execute it personally against the judgement-debtor in the first instance and if it was not possible to realise the decree debt, the decree-holder is entitled to proceed against the charged property.

3. The second objection is that as the deposit is in the joint names of the petitioner and the judgement-debtor, it is not attachable. This contention is not at all sound. O.21, C.P.C., visualises attachment of the right, title and interest of the judgement-debtor in any property, both movable and immovable. If such a contention were to be accepted, it will lead to disastrous results. For no interest other than full ownership will not be attachable. But as already pointed out by me, that is not the law. Indeed, O.21, R.46 provides that in the case of movable property other than a debt, a share, the attachment shall be made by a written order prohibiting the person in possession of the same from giving it to the judgement-debtor. The passages in Tenant's Banking Law and Practice in India, 14th Edn. relied on by the petitioner points out that in the case of a deposit in joint names, it is open to the Bank to apprise the same to the Court and to take appropriate directions to the exact amount to be deposited. The learned author has not gone to the extent of expounding a proposition that Court cannot attach under O.21, R.46, C.P.C., a sum standing to the joint names of judgement-debtor and another. The passage relied on is at page 151 and it is as follows :

"A balance standing at the credit of a joint account though payable to either of them cannot be attached by a Garnishee order." *

The learned author had pointed out that the payment to one, of the whole amount will discharge the bank from its obligation. The very author at page 163 has stated as follows -

"It is usual that the mandate should also deal with the question of survivorship. Although instructions are not absolutely necessary, it would be a desirable precaution to ascertain before hand what is to happen in the event of the death of one of the joint holders.