S. Ramachandra Iyer, C.J.
1. This is an appeal from the order of the Subordinate Judge, Salem, directing the appellant, the decreeholder in O.S. No. 76 of 1956, to proceed by way of suit to establish his right to attach certain moneys which were originally in deposit with the Canara Bank Ltd.
On 23rd August 1955, the appellants in titued the suit for recovery of Rs. 13,300, against one Sarajmal Ganeshmal Bhansali. On the same day, an application was filed for attachment before judgment of a sum of Rs. 10,000 in the hands of the Canara Bank Ltd, at Salem, as belonging to the debtor. There was an interim prohibitory order. The garnishee, viz., the Canara Rank Ltd., tiled a counter-statement, stating that the money did not belong to the debtor, but to the Lakshmi Bank Ltd., which was carrying en business in the Bombay State. Notice was thereupon issued to Lakshmi Bank Ltd., under the provisions of Order 21, rule 46-D. Lakshmi Bank Ltd. appeared and claimed that the money belonged to it. Under those circumstances, it was incumbent on the Court to have investigated as to whom the money belonged. But it could have proceeded to act under rule 46-G by referring the parties to establish their right in a separate suit. Unfortunately, that was not what was done in the case. On behalf of the decreeholder, it was agreed before the Subordinate Judge on 12th March 1957 that, as the attachment had been effected the petition might be closed and the attachment made absolute. This was because Lakshmi Bank itself filed a statement in the form of an affidavit to the following effect:
'Ourselves being a Bank, there is no fear that the money could not be realised from us in case the plaintiff ultimately succeeds in establishing that the amount belonged to the defendant and that he is entitled to attach it. We undertake to deposit the amount in Court if ultimately the Court decides that the amount belongs to the, defendant and directs us to deposit.'
The learned Subordinate Judge made art order on the same day, stating that as the attachment had been effected and ;in view of the decree-holder's endorsement, the petition was closed. It will be apparent from what we have stated above that neither the parties nor the Court had strictly followed the procedure prescribed under Order 21 rule 46-E and G. Although the application was only for attachment before judgment and the controversy in regard to the title to the money with the Canara Bank Ltd, arose even at that stage, it cannot be disputed that the Jurisdiction of the Court to decide the dispute would arise under Order 21, Rule 46-E, by reason of the provisions contained in Order 38 rule 8 C.P.C. Under the former provision, two courses were open to the Court:- (1) it could have referred to the parties to a suit; where the matter was itself complicated; or (2) it could have investigated the matter itself and decided to whom the money belonged and disposed of the application for attachment before. judgment in accordance with that finding. The order of the Court in such a case will be open to appeal under rule 46-1. Neither of the two courses was adopted in the present case by the Court. By reason of the consent of the parties the Court adopted a new procedure not sanctioned by the Code of Civil Procedure. Under the procedure so agreed to after the decree in the suit was passed, Lakshmi Bank Ltd, was to deposit the money into Court, if the Court were to decide that the amount belonged to the judgment-debtor. In other words, so far as the title to the moneys with the Canara Bank was concerned, the normal procedure was not adopted. Lakshmi Bank was allowed to take the money in spite of the fact that the attachment had been effected on condition that, if after the decree was passed in the suit, the Court were to decide that the money belonged to the judgment-debtor, the Bank was to put the moneys into Court, it is a fairly well-settled rule that, where with the consent of parties the Court departs from its usual procedure, it would not be open to either of the parties who nave consented to such departure, to challenge it and claim that the matter has got to be disposed of as if there was no such consent. From what we have stated above it mast be held that it will not be open to the Lakshmi Sank Ltd., now to insist that the claim proceedings should be investigated in a separate suit under rule 46-G. The stage at which the Court had to decide whether it is going to make an investigation in the attachment proceedings itself or refer them to a suit is past. The parties 'ad agreed - and that agreement was sanctioned by the Court - that the question had to be decided only by the executing Court.
2. Ultimately, the appellant obtained a decree in his suit. When he sought to enforce the same by an execution petition, Lakshmi Bank Ltd, resisted it, claiming that the moneys, which it took after attachment was effected belonged to it. The learned Subordinate Judge instead of investigating into the question as to whom the money Belonged, as he was bound to do under the terms of the previous order has referred the matter to a suit. As we have indicated earlier, this he had no power to do, as at the time when attachment was effected it had decided not to exercise its jurisdiction under rule 46-G to refer the parties to a suit. In other words, the decision of the question as to the title to the money in deposit with (the Canara Bank Ltd.,) was kept pending, and the present application for execution must be considered merely as a reminder to the Court of the necessity to decide that question first and grant reliefs thereafter. It was the duty of the lower Court, to have decided that question. Its order referring the parties to a suit cannot therefore be sustained.
3. There is, however, one matter which presented some difficulty in the case. We were informed that, subsequent to the disposal of the application and pending this appeal, the Lakshmi Bank Ltd, has been directed to be wound up by an order of the Bombay High Court. We were at first doubtful whether the claim which the appellant now makes against the' Bank could be investigated into before the lower Court, in view of the provisions of Section 45-B of the Banking Companies Act. But as stated above, the adjudication of the right to the money held by the Bank must be deemed to be pending by reason of the order dated 12th March 1957 in I.A.-No. 687 of 195b on the file of the Sub Court, Salem. That is to say this matter has been pending in the Court since long prior to the time when the winding up took place. No action has been taken by the Official Liquidator to have the petition transferred to the company Court under the provisions of Section 46-C of the Banking Companies Act. The executing Court at Salem will therefore have the jurisdiction to dispose of the claim. We therefore set aside the order of the lower Court and direct it to restore the application to its file and dispose it of on the merits.
4. There will be no order as to costs.