ORDER
1. This revision petition is filed against the order and decree dated 17-12-1991 passed by the learned Principal Subordinate Judge, Ongole, in EP No.40 of (1992) in OS No. 202 of 1979.
2. The petitioner is the Gamishee Bank. The first respondent is the decree-holder. The third respondent is the wife of the judgment-debtor. The first respondent filed a suit for recovery of certain sums in OS No.202 of 1979 and the same was decreed. In pursuance of the decree, the first respondent filed EP No.40 of 1982 under Order XXI, Rule 46 of the Code of Civil Procedure seeking Gamishee Order for attachment of golden ornaments in the hands of the petitioner-garnishee viz., Syndicate Bank for realisation of the decretal amount. The bank resisted the application and contended that it has power to retain the property as there is banker’s lien over the properties mortgaged before it and, therefore, the civil Court cannot exercise any power to order garnishee until the amount is realised out of the property mortgaged to the bank. Learned Judge, however, accepting the contention of the bank held that the property of late Subba Rao has to be divided into two shares and one such share should be sold out and other share is to be retained by the bank for realisation of the amount due to it. It is stated that 78 grams of gold was mortgaged in the bank for the purpose of obtaining loan. The lower Court held that 39 grams should be kept in the bank towards the realisation of the loan amount and 39 grams is to be released to the third respondent. It held as follows:
“… The Gamishee is, therefore, entitled to retain 39 grams of gold out of 78 grams pledged by late Subba Rao. The 2nd judgment-debtor is entitled to claim the remaining half of 39 grams towards her share. The garnishee, Syndicate Bank, Ongole has got general lien only on 39 grains of gold. The Garnishee Bank is at liberty to proceed as per Rules for recovery of the amount due to the bank, as indicated above, after giving an opportunity to the judgment-debtors and the Garnishee Bank is directed to
deposit the remaining sale proceeds of 39 grams of gold after adjusting the amount due to the bank by late Subba Rao. In view of my above findings, I hold that the attachment of the gold, lying in the hands of garnishee, is not sustaining under law and is, therefore, liable to be raised”.
3. Thus, the lower Court has virtually divided the property of late Subba Rao into two shares and directed half of the property is to be retained by the bank and the half to be released to the third respondent, who is the wife of the deceased judgment-debtor. It is also brought to the notice of this Court that the son for whom the half share will go also died subsequently. Aggrieved by the orders dated 17-12-1991 the revision is filed by the bank.
4. Learned Counsel for the petitioner submits that the order passed by the lower Court is wholly without jurisdiction and that the lower Court has no power to divide the property, which is the subject matter of a banker’s lien and unless and until the lien is discharged, the Court has no power to divide the same. Learned Counsel for the petitioner also further submits that as a garnishee, the order was passed in respect of 78 grams, but when once the property is subjected to banker’s lien, the Court cannot proceed with the same much less direct the Garnishee Bank to divide the property into two shares and release one such share to the third respondent.
5. Mr. P. Raghava Reddy learned advocate appears for the third respondent submits that the order is in accordance with the provisions of Order XXI, Rule 46 CPC and the same is unassailable. There is no dispute that the Garnishee Order was issued to the bank in respect of 78 grams of gold ornaments. But the question is whether the Court has got jurisdiction to divide the property in the hands of the banker.
Succession proceedings or the claims regarding the property in the hands of the bank has to be decided by the appropriate forum and this power is not vested with the Court which has passed Garnishee Order in execution proceedings. Moreover, the banker’s lien has a priority over the other attachment, and until the Hen is discharged, the property cannot be subjected to any further attachment even by a Garnishee Order. Under these circumstances, I am satisfied that the order of the Court below suffers with material irregularity. While dismissing the execution petition, the lower Court directed to divide the property into two equal quantities viz., 39 grams of gold each. When the application was dismissed, it is not appropriate for the Court to grant any such directions. Obviously when the Court has no jurisdiction, it could not have divided the property. Under these circumstances, I find that the order of the Court below is wholly illegal and without jurisdiction and accordingly the order directing the bank to divide the property into two equal shares and to deal with as directed in the impugned order is set aside. Since the gold pledged by the judgment debtor is in the hands of the banker’s, the banker shall exercise the lien and take action for realisation of the amount within a period of three months from the date of receipt of a copy of this order. If any amount is available, after meeting the banker’s liability, the same shall be treated as having been attached under the Garnishee Order, subject to the final orders in the suit.
6. The civil revision petition is ordered accordingly. No costs.