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Judgment
The revision petitioner assails the order dated 18-08-1998 passed by the learned VII Senior Civil Judge, City Civil Court, Hyderabad, in IA No.148 of 1998 filed in IA No.1866 of 1997 in OS No.1509 of 1997.
The 1st respondent herein filed the suit in OS No.1509 of 1997 for recovery of lease rentals from the 2nd respondent herein. It appears that the 1st respondent supplied certain machinery to the 2nd respondent and the 2nd respondent sub-leased the same to respondent Nos. 3 and 4. Since the 2nd respondent has failed to pay the lease rentals, the 1st respondent filed the suit for recovery of the same in an amount of Rs.1,80,46,266/-. In that suit the 1st respondent filed IA No.1866 of 1997 under Order 39 Rule 10 of CPC (for short the Code) seeking a direction from the Court to respondents 3 and 4 who are sub-lessees to deposit the amount into Court which is lying with them. After hearing both the parties an order has been passed in IA No. 1866 of 1997 by the Court below directing the respondents 3 and 4 to deposit that amount. Having been aggrieved by that order, 2nd respondent herein preferred a revision before this Court. After hearing all the parties a Division Bench of this Court confirmed that order in CMA No.536 of 1998. While things thus stand, the revision petitioner herein who is the third party to the proceedings filed an application in IA No.148 of 1998 under Order 38 Rule 8 of the Code seeking to set aside the orders passed by the Court in IA No. 1866 of 1997, mentioning inter alia that the 2nd respondent herein executed a power of attorney in its favour being a person who obtained loan from the Bank under the "bills discount account" and therefore it has lien over that amount to the tune of Rs. 1,80,46,266/-. That application having been resisted by the 1st respondent herein, the impugned order has come to be passed by the Court below.
The learned Counsel appearing for the revision petitioner contends that an amount of Rs.1,80,46,266/- does not represent the amount to be paid by the department towards lease rentals through the 2nd respondent. The learned Counsel further contends that the 1st respondent is entitled for the amount if any from the 2nd respondent only towards the head of tease rentals. The learned Counsel further contends that respondent Nos.3 and 4 have been paying the lease rentals directly to the 2nd respondent and therefore there can be no amount left with the department towards the head of lease rentals payable to the 2nd respondent and hence the amount that is lying with the department to the tune of Rs. 1,80,46,266/- is nothing but the amount towards "bills discount" and the petitioner Bank having lien over that amount, the Court below could not have validly passed the impugned order. The contention of the learned Counsel for the petitioner is twofold. While supporting the impugned order he contends that the amount represents only towards the lease rentals and that the application filed by the revision petitioner is not maintainable.
It may be mentioned here that respondents 2 to 4 having not filed any counter in IA No. 148 of 1998, the contest confined only between the petitioner and the 1st respondent inter se who are parties thereto. While it is the contention of the petitioner that this amount of Rs. 1,80,46,266/ - represents the amount towards the "bills discount"; it is the contention of the 2nd respondent that it represents the "lease rentals". Admittedly the 2nd respondent who obtained the machinery with the money advanced by the 1st respondent, has subleased the same to the department being represented by respondent Nos.3 and 4 herein. There is no privity of contract between the 1st respondent and respondent Nos.3 and 4. Of course the learned Counsel representing the petitioner contends that the sub-lease is known to the 1st respondent and it is only with the consent of the 1st respondent. Whatever it may be, ultimately there is no proof that has been adduced before the Court to show that this amount which has been ordered to be deposited is lying towards the head of "bills discount". But it is for the revision petitioner having filed an application seeking to set aside the order passed by the Court below in IA No. 1866 of 1997 to show before the Court that the disputed amount represents the head of account of "bills discount", over which the petitioner has lien. Except relying upon the power of attorney stated to have been executed by the 2nd respondent in favour of the petitioner Bank, no other evidence has been adduced. No doubt the petitioner is a chartered bank dealing with the public money and its interest is to be safeguarded. But certainly the petitioner can not seek any preference over the 1st respondent and that the order is expected to be passed in particular way. I therefore see that no illegality or material irregularity has been committed by the Court below under the impugned order by directing the respondents 3 and 4 to deposit the amount with the Court and in fact that has been confirmed by a Bench of this Court. To set aside that order as sought for by the petitioner Bank, it must come forward to show that the amount represents the "bills discount" account. Therefore the 1st respondent herein having no claim over that account towards that head could not have validly sought for the deposit of that amount. At the instance of the petitioner Bank notices were ordered to be issued to respondents 3 and 4 which have appeared through its Standing Counsel have not been in a position to show that this amount was lying towards the head of "bills discount". Therefore it can not be said that the impugned order is illegal or is suffering from the vice of material irregularity.
Coming to the maintainability of the petition, although for the reasons enumerated by this Court in the order supra the revision can be disposed of without adverting to the question of maintainability, it is better the same is also considered herein as the problem might arise time and again, though not in this case, but in several cases. The revision petitioner filed a petition before the Court under Order 38, Rule 8 of CPC. Obviously that provision has no application to the present case, inasmuch as no attachment before judgment has been sought for by the 1st respondent. The contention of the learned Counsel for the petitioner is that the order amounts to an attachment as a direction has been given to deposit the amount can not be countenanced, inasmuch as the provisions of Order 39 Rule 10 clearly envisage that the Court can order deposit of the amount lying with any party, who holds the same as a trust for another, into Court. It is not a case of the amount lying with a third party or garnishee that is sought to be attached. In any view of the matter the provisions of Order 38, Rule 8 have absolutely no application to the present facts. It is the contention of the learned Counsel for the 1st respondent that the remedy of the petitioner lies only in filing the suit and Section 151 can not be invoked since the Code insists that the provisions are to be invoked only in the absence of any other remedy. The amount which is now sought to be deposited into Court to the credit of the suit is lying with respondents 3 and 4. An order has been passed by the Court. Regardless of the fact that such an order is erroneous or correct, but for that order the amounts would not have been deposited into Court. If for any reason third party has any legitimate claim over that amount, that party can not be made to suffer by the dominent action of the Court. To avoid such hardship to a third party whose interest having been affected on account of the dominent action of the Court, it is for the Court to see that justice is done when that party approaches that Court in the self same proceedings in which that order has come to be passed. In my considered view it is a case where the Court can entertain this application and pass necessary orders in the interest of justice by invoking the principle of pro-interesse suo proceedings in view of the judgment passed in Narthar Raj and Others Vs. Tirupathi Bibi and Others, , wherein this Court held thus:
"The pro interesse suo proceedings are a judicial device intended to protect the rights of the persons who are not parties to the proceedings in a suit but who suffered a legal injury because of the dominant Court action".
Therefore the contention of the learned Counsel for the 1st respondent that the petitioner has only a remedy of filing a suit can not be accepted. Of course the application having been filed under the provisions of Order 38, Rule 8 CPC is not maintainable but mentioning of a wrong provision is no ground to reject the application, provided, the application can be maintained otherwise. In view of my above discussion third parties whose rights have been affected can certainly approach the Court and this doctrine or the judicial devise can be invoked.
For the above reasons the petition of the petitioner filed before the Court below is maintainable, in view of the doctrine or pro interesse suo proceedings.
In the result the petition fails and the petition is dismissed. Under the circumstances of the case there shall be no order as to costs.