Order XXI Rule 46 CPC applies exclusively to execution proceedings and not original suits.

The Appellant, a real estate developer, entered into a construction agreement and sale deed with the first respondent (M. Rekha) in 2020 for a residential flat.

The first respondent mortgaged the property to Punjab National Bank (second respondent) to obtain a housing loan but subsequently defaulted.

The Bank initiated SARFAESI proceedings and issued an E-auction sale notice.

Claiming that the first respondent owed Rs. 41,42,871/- toward construction costs, the Appellant filed a recovery suit (COS SR No. 185 of 2024).

Along with the suit, the Appellant filed an Interlocutory Application under Order XXI Rule 46 of the CPC seeking to attach any excess sale consideration held by the Bank.

The Principal Commercial Court, Egmore, rejected the application as not maintainable, leading to this appeal.

1. Whether an interlocutory application filed under Order XXI Rule 46 of the CPC is maintainable during the pendency of an unnumbered original suit.

2. Whether a third-party claimant can enforce rights against a secured creditor (Garnishee) under Garnishee proceedings before a decree is passed.

Order XXI Rule 46 of the Code of Civil Procedure (CPC), which provides for the attachment of debt, shares, and other property not in the possession of the judgment-debtor.

Section 51 and Order XXI Rule 11 of the CPC regarding the execution of decrees.

The precedent established in Bhagyoday Cooperative Bank Ltd v. Ravindra Balkrishna Patel (2022 Livelaw (SC) 1020), which held that Order XXI Rule 46A is part of the execution scheme and can only be invoked by a decree-holder.

The Court observed that the Appellant's suit had not yet been numbered or taken on file at the time the application was moved.

It reasoned that Order XXI of the CPC specifically governs the "Execution of Decrees and Orders"; therefore, its provisions are only triggered after a decree has been passed.

In the present case, the litigation was at the stage of an original suit, meaning the legal status of "decree-holder" and "judgment-debtor" had not yet been established between the parties.

The Court noted that the second respondent (Bank) was a secured creditor under SARFAESI proceedings, whereas the Appellant was a third-party stranger with no privity of contract with the Bank.

Consequently, the Appellant could not invoke Garnishee provisions to intercept the Bank's statutory recovery process before obtaining a formal judgment and decree.

The Appellant's prayer to claim excess sale proceeds from the secured creditor via Garnishee proceedings was deemed premature and legally unsustainable at the pre-decree stage.

The High Court found no infirmity in the lower court's order and dismissed the appeals; no costs were awarded.