IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 7^TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 RFA NO. 41 OF 2021 AGAINST THE ORDER/JUDGMENT DATED 27.11.2020 IN EA NO.94/2020 IN EP NO.114/2020 IN OS 262/2016 OF PRINCIPAL SUB COURT, NORTH PARAVUR APPELLANT/1ST GARNISHEE:

THE MANAGING DIRECTOR, M/S.NANMA KURIES PVT.LTD., OLD MARKET ROAD, ANGAMALY, ERNAKULAM DISTRICT REP. BY ITS DULY AUTHORISED REPRESENTATIVE, CHELLAPPAN NAIR P.K., AGED 73 YEARS, S/O.KUTTAPPAN NAIR, BUSINESS EXECUTIVE, M/S.NANMA KURIES PVT.LTD., ANGAMALY.

BY ADVS.

SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT RESPONDENTS/DECREE HOLDER, JUDGMENT DEBTOR AND 2ND GARNISHEE:

1 REJI, AGED 54 YEARS, S/O.URUMEES, PALIKKODATH HOUSE, NEAR SNDP JUNCTION, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683 572.

2 BIJU ELYAS, AGED 52 YEARS, S/O.ELYAS, KOORAN HOUSE, ANGADIKADAVU BHAGAM, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683 572.

3 THE DHANALAXMI BANK, ANGAMALY BRANCH, KOORAN TOWER, ANGAMALY, ERNAKULAM DISTRICT, PIN - 683 572.

BY ADVS.

SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Garnishee proceedings were initiated under Order XXI Rule 46 CPC against the appellant and third respondent, Dhanalakshmi Bank (named as garnishee No.2 in the impugned order) and issued an order to retain an amount of Rs.8,72,450/- with the third respondent, out of the amount stands in the name of appellant, which is under challenge.

2. During the course of argument, the Senior Counsel for the respondent raised an objection regarding the maintainability of the appeal and submitted that the appeal ought to have been filed before the District Court concerned, since the valuation of the order under challenge comes to only Rs.8,72,450/-. The suit is of the year 2016 and the garnishee proceedings were initiated in the year 2020 at the execution stage. The amount sought to be attached comes to more than Rs.25,00,000/-. Every order passed under Rule 46B, 46C, 46E of Order XXI CPC shall be appealable as a decree by virtue of Rule

46H of CPC. For the purpose of ascertaining the appellate jurisdiction, the value of subject matter of the suit or proceeding should be taken into consideration when it is against the order or decree of a Munsiff's Court. As such, there is no merit in the initial objection raised regarding jurisdiction.

3. The Garnishee admittedly is a chitty company wherein the Judgment Debtor was a subscriber. Exts.B1 to B5 documents produced to show the amount which were disbursed to the Judgment Debtor out of the amount due. The bank wherein the chitty company/garnishee maintained an account also arrayed as party to the proceedings.

4. It is submitted that the best evidence available with the garnishee to show the actual amount due was not produced. It is true that initial onus to prove the amount in the hands of garnishee is on the person who asserts it, but regarding best evidence available, both the parties to the proceedings would stand on the same pedestal, irrespective of initial onus to be discharged. The party who possesses best evidence is bound to disclose it by tendering the same in evidence. Hence, a remand of the matter to the execution court for that purpose cannot be avoided. The impugned order is hereby set aside. The matter is remanded back to the execution court for fresh consideration. The parties shall appear before the execution court on 27/09/2021 and it shall be disposed of within four months from that date. No costs.

Sd/-

P.SOMARAJAN JUDGE MSP