O R D E R

BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.

1. This is an appeal filed U/s.41 of CPA 2019 by Garnishee/Third party aggrieved by the order dtd.07.07.2023 passed in EA/10/2019 on the file of Kolara District Commission.

2. The Appellant herein being CEO, Kolara and Chikkaballapura DCC bank has stated the Kolara District Commission has failed to see the contents of affidavit sworn in by her. Although law is very clear that once the objector application is filed in any proceedings that has to be treated as a suit or petition and the Executing Commission has to hold an enquiry on such application. The District Commission even without holding an enquiry ordered to dismiss the application filed U/o 21 Rule 97, 98 & 101 of CPC with cost of Rs.5,000/-. It is this order is assailed in this appeal contending that Judgment Debtors and Judgment Creditors have collusively obtained an award in CC/4/2019 to defraud the Appellant herein was not at all enquired into by the District Commission, Kolar while passing the impugned order.

3. The Commission examined the grounds of appeal, impugned order, appeal papers, show cause notice dtd.13.02.2023 issued by District Commission against Appellant herein and heard learned counsels for Appellant and R1.

4. Issuance of notice against R2 & R3 is dispensed with as not necessary to decide the appeal. Now the point that arise for consideration of the Commission would be:

Whether the impugned order dtd.07.07.2023 passed in EA/10/2019 is sustainable under law and the procedure contemplated U/o 21 Rule 43, 43A and 58 of CPC ?

5. Let us examine Sec.71 of CPA 2019 which provides for “Enforcement of Orders of District Commission - Every order made by a District Commission, State Commission or the National Commission shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act.” Now, we have to examine what are all the rules provided U/o 21 to decide applications arising out of the award. Rules 43, 43A and 58 of CPC would play vital importance in these matters, which in our view as far as may be applicable subject to the modification that every reference therein to the award. Admittedly Appellant herein is a Garnishee and he is third party. In other words not necessary that such third party has to be made party either at the time of filing complaint case i.e., CC/4/2019 and EA/10/2019 but facts remain during the course of execution of the award executing commission issued show cause notice against Appellant herein on 13.02.2023 on the ground that the amount of Jdrs is withheld by them and in the show cause notice informed in the following command “by way of direction of the Executing Commission to the Thasildhar through Deputy Commissioner to attach the amount in deposit kept in the account of Jdr maintained in the Appellant bank and to disburse the amount as per the orders of the Commission in CC/4/2019, but till today the same has not been done despite the instructions given by the Thasildhar based on the orders of the Commission.” In this regard summoned third party/Appellant herein to appear before the District Commission in person duly instructed, on 07.03.2023 at 11 am, to show cause, why contempt proceedings shall not be taken against him through process of Law for not complying the orders of this Commission. In our view, though the executing commission is empower to issue such show cause notice to third party/Garnishee to take notice of the information and to act upon or to appear before the commission for the purpose of enquiry, informing such party at that stage to initiation of contempt proceedings is uncalled for and such notice has to be held unsustainable under law.