Order setting aside order of attachment held erroneous.

The revision petitioner and appellant in all the three cases are one and the same, namely ICICI Bank Ltd., Both the CRPs have been preferred by the ICICI Bank Ltd against the orders passed in I.A.Nos:17604 and 19512 of 2002 in I.A.No:12477 of 2001 in O.S.No:4406 of 2001 passed by the learned III Assistant Judge, City Civil Court, setting aside the ex parte order of attachment before judgement made in I.A.No:12477 of 2001 dated 211. 2001 and dismissing the I.A.,preferred by the ICICI Bank Ltd., to direct the second respondent-Garnishee, Indian Bank to deposit the decree amount into court.

2. The CMSA has been preferred by the ICICI Bank Ltd., as against the judgement and decree of the first appellate court passed in A.S.No:431 of 2005 whereby the learned VII Additional Judge, City Civil Court, Chennai, set aside the order of the trial court made in E.P.No:313 of 2005, directing the garnishee-Indian Bank to deposit the amount attached in I.A.No:12477/2001.

.3. The brief facts of the cases are as follows:

.The revision petitioner-ICICI Bank Ltd., filed the suit O.S.No:4406 of 2001 as against the second respondent-Indian Bank for recovery of a sum of Rs.2,57,063/= with interest. The first respondent is the guarantor to her husband, the principal debtor Dr. Premkumar, who availed a loan of Rs.2,57,063/= from the plaintiff bank during the year 1998 and her husband died on 4. 2001 and hence the first respondent, as a guarantor and the only legal heir was brought as defendant in the suit. Her husband was a retired Assistant Manager of Indian Bank, who voluntarily retired on 22. 2001.

4. It is not in dispute that the plaintiff filed a petition for attachment before judgement in I.A.No:12477 of 2001 and the same was allowed on 10. 2001. On 11. 2001 the order of attachment was served on the Garnishee-Indian Bank and attachment was made absolute on 211. 2001. It is also not in dispute that an ex parte decree has been passed in the suit on 22. 2002 and based on the ex parte decree the plaintiff also filed Execution Petition.

5. It is submitted by the learned counsel for the revision petitioner that when notice has been issued by the trial court in I.A.No:12477 of 2001 to direct the first respondent to furnish security by 38. 2001 and also a notice to the Garnishee, Indian Bank Head Office, there was no appearance by the Garnishee Bank, nor by the first respondent, guarantor on the said date. Significantly though the Garnishee-Indian Bank acknowledged the said notice, failed to enter appearance. Thereafter substituted service by way of paper publication was effected and in spite of that, the first respondent failed to appear before the trial court and the trial court thereafter only passed an order of attachment before judgement on 10. 2001 against the first respondent and the order of attachment was served on the second respondent-Garnishee Bank on 110. 2001 and the order of attachment was also made absolute on 211. 2001. Thereafter only when the plaintiff filed Execution Petition, the first respondent Mrs.Sundari Premkumar entered appearance and also filed petitions in I.A.Nos.17604 and 17602 of 2002 before the trial court respectively to set aside the order of attachment as well as the ex parte decree of the suit passed against the first respondent.

6. Thereafter, the plaintiff-ICICI Bank Ltd., filed the I.A.No: 19512 of 2002 before the trial court for a direction to the Garnishee-Indian Bank to deposit the attached amount with the trial court to safeguard the interest of the creditor-plaintiff. However, as already stated, the Garnishee-Indian Bank had not chosen to enter appearance inspite of receipt of notice as early as in the year 2001 and entered appearance only in 2004 and filed a counter affidavit disclosing the fact that they had already released the attached amount to the first respondent during August 2002 itself. Ultimately, the said I.A.19512 of 2002 came to be dismissed by the trial court on 9. 2005 holding