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Judgment
Srinivasan, J.—These three revision petitions arise under the following circumstances. The petitioner was the first defendant in O.S. No. 435
of 1979 filed by the State Bank of India through its branch at No. 160 Village Road, Madras-34. It was a suit on a mortgage. At the instance of
the petitioner, the second defendant M/s. Inrays Sales Limited, Faridabad, Haryana State was impleaded under the provisions of Section 8-A of
the Code of Civil Procedure. A preliminary decree was passed on 31.3.1983. There was a provision in the decree that the 2nd defendant shall
pay to the first defendant-petitioner Herein a sum of Rs. 48,761.64 with subsequent interest till payment.
The petitioner filed E.P. No. 25 of 1986 for issue of a prohibitory order to the garnishee mentioned therein and to attach the funds belonging to
the second defendant referred to above and lying in current account with the said garnishee under Order 21, Rule 46 of the Code of Civil
Procedure. The Manager, State Bank of India at Faridabad branch of-the Bank was shown as the garnishee. On 16.4.1986 an order was passed
by the Court below.
Attachment by pro-order and notice 26.4.86.
On 26.4.1986 the following endorsement is found.
Respondent and garnishee absent. Petitioner''s Counsel report that they have been served. Affidavit of service. Notice attested translation and
disposal 28.4.1986.
On 28.4.1986 the final order was passed. ""Affidavit of service translation filed. Respondent and garnishee absent. Attachment made absolute.
Petition allowed.
Thereafter the petitioner filed R.P. No. 41 of 1986 for directing the garnishee to deposit the amount attached in E.P. No. 25 of 1986 with the
executing Court in Madras in satisfaction of the decree obtained by the petitioner as against the second defendant. In that petition, the only
respondent was the second defendant, who was the judgment debtor vis-a-vis the petitioner. But in column 11 providing for the details of the
persons against whom execution is sought, besides mentioning the particulars of the second defendant, the Manager of Slate Bank of India,
Faridabad was also mentioned as garnishee. The plaintiff in the suit was not shown as a respondent in the said petition.
The garnishee filed E.A. No. 147 of 1988 for setting aside the order passed in E.P. No. 2.5 of 1986, along with an application to condone the
delay of 645 days in filing the same. The application to condone the delay was numbered as E.A. No. 147 of 1988. The application to set aside
the order in E.P. No. 25 of 1986 was not numbered as the application for condonation of delay had to be disposed of first. The application for
condonation of delay was opposed by the petitioner and it was dismissed by a one line order by the Executing Court, stating that the application
was dismissed. No reason was given by the Executing court for dismissing the application. That was done on 29.6.1989. The garnishee did not
take any further steps as against the said order. On 18.7.1989, E.P. No. 41 of 1986 filed by the petitioner was disposed of by a detailed order.
That petition was dismissed on the ground that Rule 4 of Order 8-A of the. CPC had not been complied with and the prayer of the petitioner
herein cannot be granted. Aggrieved by the same C.R.P. No. 1127 of 1990 has been filed by the petitioner. The petitioner had also filed E.A. No.
223 of 1986 under Order 21, Rule 19 of the CPC for entering full satisfaction of the decree passed in O.S. No. 435 of 1979. The petitioner filed
E.A. No. 257 of 1987 under Order 21, Rule 2, CPC for adjusting the amount of Rs. 89,642.14 as against the amount due under the decree
obtained by the plaintiff. Both the applications were dismissed on 18.7.1989 as a consequence of the dismissal of E.P. No. 41 of 1986. As against
the same, the petitioner has filed C.R.P. Nos. 1128 and 1129 of 1990. In these revision petitions, the plaintiff has been impleaded as a respondent
though the plaintiff was not a party to the proceedings in the Court below.
Learned Counsel for the petitioner contends that after the order in E.P. No. 25 of 1986 attaching the amount belonging to the second defendant
and in the custody of the garnishee which has a branch of the State Bank of India of Faridabad has become final, it is not open to the plaintiff to
raise an objection invoking Order 8-A, Rule 4 of the Code of Civil Procedure. It is also the contention of the petitioner that all the branches of the
State Bank of India will be one and the same for the purpose of execution proceedings. He placed reliance on a passage in M.L. Bedi''s Practical
Banking, page 156. He also relies upon a passage found at page 82, Banking Theory Law and Practice by M.L. Tannan. He relies upon the
decisions of other High Courts and the Supreme Court in which it has been held that a decision of a Court even it is wrong will be res judicata in
subsequent proceedings. He also cites authorities for the purpose of saying that the principles of res judicata would apply to execution
proceedings.
As regards the proposition that all branches of a Bank are one and the same, learned Counsel for the plaintiff, who is a respondent herein
submits that it has been held by this Court in N. Mohamed Hussain Sahib Vs. The Chartered Bank, Madras and Another, , that for the purpose of
advance and accounts, branches of Bank arc different in the eye of law. In that case it was held that the fact that the customer had funds in the
Karachi branch would not entitle him to insist on the Madras Bank honouring his cheques at Madras in excess of the overdraft limit. The law on the
subject has been discussed fully and the Court has come to the conclusion that for the purposes of advance and accounts, no branch can be said to
be the same as another branch.
The contention that the order in E.P. No. 25 of 1986 having become final, it is not open to the plaintiff to invoke Order 8-A, Rule 4, CPC is
without any substance. The order in E.P. No. 25 of 1986 shows that the Court had made the attachment absolute as the garnishee was absent.
The prayer in E.P. No. 25 of 1986 was only to issue an order under Order 21, Rule 46, Code of Civil Procedure. Under that provision, the Court
is only to issue a prohibitory order restraining the garnishee from making any payment to the judgment-debtor. The order in this case in E.P. No.
25 of 1986 would only amount to a prohibitory order restraining the garnishee from making any payment to the second defendant in the case. If the
petitioner wanted to take further steps pursuant thereto, he must have done it under Rule 46-A of Order 21, Code of Civil Procedure. As regards
Madras, Rules 46-A to 46-I would govern the situation. Under the Rules a fresh notice should be issued to the garnishee directing him to pay into
Court the amount due by the garnishee to the judgment-debtor within such time as may be allowed. In this case when the garnishee filed an
application to condone the delay in seeking to set aside the order in E.P. No. 25 of 1986 it was stated categorically that no amount due to the
second defendant was available with the garnishee. On the other hand, it was clearly stated that a sum of Rs. 12,96,653.79 was due to the
garnishee from the second defendant in this case.
In so far as there is no order under Rule 46-A of Order 21 of the Code of Civil Procedure, the petitioner cannot contend that there was a
conclusive order as against the garnishee which would prevent him from taking any further plea in the execution proceedings. Moreover in this
case, it is the plaintiff who is resisting the present proceedings. Under Order 8-A, Rule 4 of the Code of Civil Procedure, the language is
mandatory. According to that rule, if a third party does not enter appearance in the suit and the suit is decreed by consent or otherwise in favour of
the plaintiff, the Court may pass such decree as the nature of the case may require against the third party and in favour of the defendant on whose
behalf notice was issued, provided that execution thereof shall not be issued without leave of the Court until after satisfaction by such defendant of
the decree against him. Under this rule, the petitioner herein cannot take out execution as against the second defendant pursuant to the decree
without the leave of the Court until after satisfaction of the decree passed against the petitioner in favour of the plaintiff. As these conditions have
not been satisfied, the Court below has dismissed E.P. No. 41 of 1986.
Learned Counsel for the petitioners submits that the leave of the Court can be obtained even at the appellate stage and relies on the analogy of
leave of Court being granted u/s 20 of the Code of Civil Procedure. There is no authority to support the contention of the petitioner. I do not
accept the contention. I am of the view that in the face of the mandatory language used by Order 8-A, Rule 4 of the Code of Civil Procedure, the
petitioner ought to have obtained leave of the Court before taking out execution against the second defendant. But at any rate the second condition
in this case, namely the satisfaction of the decree obtained against the petitioner has not been fulfilled. Unless that condition is also fulfilled, it is not
open to the petitioner to seek execution as against the second defendant.
On the facts of the case, the principles of res judicaia will not apply.
I am of the view, that the Court below has done justice in this matter by dismissing the applications filed by the petitioner. I do not find any
ground to interfere. Hence the civil revision petitions are dismissed. But there will be no order as to costs.