LAWS(PVC)-1935-10-147

ATMAKURU BUTCHAYYA CHETTY Vs. CHAKRAM KRISHNAMACHARI

Decided On October 23, 1935
ATMAKURU BUTCHAYYA CHETTY Appellant
V/S
CHAKRAM KRISHNAMACHARI Respondents

JUDGEMENT

(1.) This is a petition under Section 25 of the Provincial Small Cause Courts Act, to set aside the decree of the District Munsif of Berhampore in Small Cause Suit No. 1197 of 1930. The plaintiff filed Small Cause Suit No. 542 of 1929 against one Seshayya. During the pendency of that suit he applied for attachment of a sum of Rs. 130 out of Rs. 300 alleged to belong to that Seshayya and to be in deposit with the defendant. As the defendant did not appear, the attachment was made absolute. (Exs. B and B-1). After the decree was passed in the said suit, the plaintiff filed Execution Petition No. 501 of 1930, requesting the Court to send for the amount in the hands of the defendant already attached before judgment and to pay the same to him. In spite of the fact that there was already an attachment before judgment, the Court made another order of attachment. When notice was served on the defendant-garnishee, he filed a counter-statement (Ex. F) denying that he had any amount belonging to the judgment- debtor with him. The Court made an order on the 29 July, 1930, disallowing the objection and directing the defendant to deposit the amount into Court within a week. As the money was not deposited, the plaintiff got himself appointed as Receiver, (Exs. D and D-1) for the purpose of collecting the amount, and he has filed this suit. The defendant contended that there was no amount belonging to Seshayya with him. The Lower Court, holding that, as the defendant had not filed a suit, under Order 21, Rule 63, Civil Procedure Code to set aside the order of the 29 July 1930, disallowing his objections to the attachment, he was precluded from agitating the question over again in this suit that no amount belonging to Seshayya was with him, gave a decree as prayed for; hence this petition.

(2.) The only question that arises for decision in this petition is whether, when a garnishee merely denies the existence of a debt sought to be attached in execution of a decree and an order is made disallowing that objection, that order comes within the purview of Rules 58 to 63 of Order 21, Civil Procedure Code.

(3.) There are decisions of this Court as well as of the Allahabad and Rangoon High Courts, holding that it is not within the province of an executing Court to enquire into the truth or existence of a debt sought to be attached. This question arose directly for decision in the case of Alwar Ayyangar V/s. Subramania Dikshithar and Curgenven J, following the decisions reported in Maharaja of Benares V/s. Patraj Kunwar (1905) I.L.R. 28 All. 262 and Ma Saw Yin V/s. Hockto (1926) I.L.R. 4 Rang. 100 held that it was not for the Court executing a decree to determine whether the debt was actually due or not. The learned Judge went on to say, "It has to attach the alleged debt and thereafter there are only two courses open to it, either to sell the debtor to appoint receiver to realise it". No decision of this Court has been brought to our notice in which a contrary view has been expressed. It may also be observed that no rules regarding garnishee proceedings have been framed by this Court for the guidance of the mofussil Courts similar to those existing on the Original Side of this Court and to those framed by the Allahabad, Rangoon and Lahore High Courts. In those High Courts there are additional rules framed to the effect that if a garnishee denies the existence of a debt, the Court may frame and determine an is sue relating thereto. In these circumstances, we are of the opinion that it is not for a Court executing a decree to decide whether the debt attached is really due or not.