Compliance with procedural requirements in execution proceedings, including the necessity of a formal order of attachment as a condition precedent.

R.C. DEO SHARMA, J.

1. THIS is a judgment debtor's revision petition against the order dated 1-10-1983 passed by the learned Civil Judge, Lucknow in execution proceedings. It will appear that M/s. Jaiswal Coal Co. obtained a decree against the Union of India relating to a railway claim. The decree was under execution. Certain conditional stay order was passed by this Court requiring the judgment debtor to furnish security within a fixed period but the same was not furnished and accordingly the stay order was vacated. The learned Civil Judge, thereafter on the application of the decree holder directed, by the impugned order that the State Bank of India, with whom the account of the Central Government operated by the Senior Divisional Accounts Officer, Northern Railway was maintained, should credit the decretal amount to the account of the decree holder by debitting an equal amount to the account of the Central Government. The revision petition has been directed against this order and it has been contended that the order passed by the court blow is without jurisdiction inasmuch as no such order could have been passed without a formal order of attachment having first been made in accordance with Order 21 Rule 46 of the CPC. It is also contended that even after attachment the attached money was to be ordered to be deposited in the court and not directly in the account of the decree holder. The petition has been contested on behalf of the decree holder.

2. I have heard the learned counsel for the parties and have also gone through the impugned order. It has not been denied that a formal order of attachment was passed by the Court below initial by but the same was withdrawn by a subsequent order either on the receipt of the Letter sent by the State Bank of India pointing out certain procedural difficulties or in pursuance of High Court as order granting an interim stay. The fact, however remains and has not been disputed that thereafter no formal order of attachment of any amount was passed by the executing court. A reference to Order 21 Rule 46 CPC will show that a formal order of attachment is a condition precedent and it is only in continuation of attachment order that the debtor is prohibited from making payment and the creditor from recovering it until further orders of the Court. In this case the State Bank of India could have been prohibited from making payment of the attached amount to the Central Government and directed to remit the same to the court for payment to the decree holder. In this view of the matter it cannot be said that the impugned order was passed in conformity with the provisions of the aforesaid Order 21 Rule 46. The position has not been disputed by the decree holder's learned counsel. Having heard the learned counsel for the parties, therefore, and also considering the fact that the Litigation has been pending since Long it would serve no useful purpose to merely quash the impugned order. It would, therefore, be expedient to direct the executing court to pass a formal order of attachment of the amount in question and issue a prohibitory order to the State Bank of India and the judgment debtor in terms of Order 21 Rule 46 CPC and then direct the Bank to deposit the amount in the Court. In case of failure by the Bank to comply, it would be open to the executing court to proceed in accordance with the provisions of Order 21 Rule 46-A and 46-B etc. of the CPC. With these observations the revision petition is disposed of. There shall be no order as to costs.

Ordered accordingly.