THE HON’BLE SRI JUSTICE UJJAL BHUYAN CIVIL REVISION PETITION No.1092 OF 2022

ORDER

Heard learned counsel for the petitioner.

2. Petitioner is aggrieved by docket order dated 30.03.2022 dismissing the interlocutory application filed by him being I.A.No.85 of 2022 in O.S.No.946 of 2022 pending before the XIX Junior Civil Judge, City Civil Court, Hyderabad.

3. It is a suit instituted by the petitioner as the plaintiff for recovery of money. Petitioner also filed an interlocutory application i.e., I.A.No.85 of 2022 seeking attachment of amounts lying in the Office of the Principal Accountant General, Senior Auditor (Bills), Andhra Pradesh in respect of defendant No.1 G. Bhagya Prakash Mani who is working in the said establishment. The above prayer was made under Order 21 Rule 46 CPC. However, by the docket order dated 30.03.2022, I.A No.85 of 2022 has been dismissed on the ground that the petition ought to have been filed under Order

38 Rule 5 CPC and not under Order 21 Rule 46 CPC. 4. Docket order dated 30.03.2022 reads as under:-

“I.A.No.130/2022 is allowed. Matter is advanced from 06.04.2022 to this date.

Heard the learned counsel for the petitioner. It is the contention of the petitioner that the respondent is working as an employee in the office of the Principal Accountant General, A.P. It is further the contention that the respondent is due to an extent of Rs.2,50,000/- to the petitioner herein. The petitioner therefore intends this Court to issue warrant as against the garnishee of the respondent, attaching the amount lying in the office of the Principal Accountant General and to remit the same into the credit of the above suit.

It is to be noted that Order 21 Rule 46 CPC deals with Attachment of debt, share and other property not in possession of the Judgment debtor. Execution proceedings Under Order 21 Rule 46 of CPC pertains to the Judgment debtor after the suit is decreed in favour of the petitioner/plaintiff. Therefore this Court is unable to comprehend as to how the petitioner maintainable when the suit is still at summons stage. The petitioner ought to have filed a petition Under Order 38 Rule 5 CPC and not under Order 21, Rule 46 of CPC. In view of the above discussion the petition is dismissed”.

5. While the learned Court below may be technically correct in holding that the I.A prayer ought to have been made by the petitioner under Order 38 Rule 5 C.P.C but, in the opinion of the Court, the Court below could have treated the I.A of the petitioner as a petition under Order 38 Rule 5 C.P.C. If a relief sought for is traceable to a valid source of law, mentioning of wrong legal provision should not disentitle the party from seeking the relief. It is trite that technicalities should not come in the way of justice.

6. That being the position and without expressing any opinion on the merit of the prayer made by the petitioner, impugned order dated 30.03.2022 is hereby set-aside. Matter is remanded back to the Court of XIX Junior Civil Judge, City Civil Court, Hyderabad for passing fresh order in accordance with law by treating I.A No.85 of 2022 as an interlocutory application under Order 38 Rule 5 CPC.

7. Civil revision petition is accordingly allowed. No costs.

8. Miscellaneous petitions if any, pending in this civil revision petition shall stand closed.

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UJJAL BHUYAN, J Date: 09.06.2022.

vrks THE HON’BLE SRI JUSTICE UJJAL BHUYAN CIVIL REVISION PETITION No.1092 OF 2022 Date:09.06.2022 vrks