Property attached before judgment in pending suit.

The petitioner is the second defendant in O.S.No.294 of 1985 on the file of the Sub Court, Madurai who is only a garnishee. The first respondent filed the said suit for recovery of a sum of Rs. 17,555.28 from the second respondent herein. Pending the suit, the first respondent obtained an order of attachment of a sum of Rs.22,000 due to the second respondent herein, lying in the hands of the petitioner. In the garnishee application, notice was ordered to the petitioner. Since the petitioner did not represent, the order of attachment was made absolute on 28. 1986. Subsequently the petitioner was directed to deposit the amount in court by order dated 212. 1986 which was not complied with. Thereafter the suit was decreed and the first respondent filed E.P.No.80 of 1988 seeking a direction, directing the petitioner herein to deposit the decree amount from out of the attached amount, lying with the petitioner. The said petition was dismissed by the Executing Court on the ground that without an order of attachment under O.21, Rule 46, C.P.C. and without issuing notice under O.21, Rule 46-A of C.P.C. the petitioner herein cannot be directed to deposit the amount. The Executing Court dismissed the said E.P. by order dated 12. 1989. As against the same, the first respondent herein filed an appeal in C.M.A.No.44 of 1990 on the file of District Court, Madurai. The First Additional Judge by his order dated 28. 91 has allowed the appeal and directed the petitioner to deposit the decree amount into court. Aggrieved by the same, the petitioner preferred this revision.

2. Mrs.P.Bhagayalakshmi, the learned counsel for the petitioner contended that an order directing the petitioner to deposit the amount under O.21, Rule 46-B of C.P.C. can be passed after issue of notice to the garnishee, as contemplated under 0.21, Rule 46-A of C.P.C. The lower appellate court has proceeded on an assumption that the decree amount is available with the petitioner herein, since the petitioner did not respond to the notices issued in respect of the order of attachment pending the suit. Even though an order of attachment was made pending the suit, the Rules require the notice to be issued under O.21, Rule 46-A of C.P.C. before ever the garnishee is directed to deposit the amount. Hence the order of the lower appellate court is liable to be set aside.

3. Mr.Srinivasan the learned counsel for the first respondent contended that once an order of attachment is made pending the suit, there is no need to issue a fresh notice under O.21, Rule 46-A of C.P.C. The court is empowered under O.21, Rule 46-B of C.P.C. to direct the garnishee to deposit the amount and hence the revision is liable to be dismissed.

.4. I carefully considered the contention of both the counsel. The undisputed facts are that the first respondent filed the suit against the second respondent and obtained an order of attachment pending the suit in respect of the amount lying with petitioner-gar-nishee. The garnishee did not respond to the notices sent by the court in the said proceeding. The suit has been decreed and the execution is levied.

.5. The attachment before judgement is governed by he provision of O.38, Rule 5, Civil Procedure Code.

.Once the order of attachment is made pending the suit, the attachment would continue till the same is raised. Hence, there is no need for the decree-holder to seek for fresh order of attachment under O.21, Rule 46 of C.P.C. The attachment is deemed to be in effect and as such the decree-holder can proceed against the attached property.

6. The short question is whether the notice is necessary. The learned counsel for the petitioner relied upon the judgement reported in Executive Engineer, T.C. Division, K.S.E. Board v. J.H. Sharma, A.I.R. 1988 Ker. 285, wherein a Division Bench of the Kerala High Court, in an identical case, has held as follows:

“It has to be noticed that Rule 46 does not contain any provision enabling the garnishee to raise any obj