Decided on August 03,1960



- (1.)In this case the petitioner, Messrs, Arthur Butler and Company Limited, obtained a rule from the High Court, asking the opposite parties to show cause why the order of the 1st Subordinate Judge of Muzaffarpur, dated the 10th September, 1957, directing the petitioner to be proceeded against as a garnishee in the execution case brought by the decree-holder opposite parties, should not be set aside by the High Court in its revisional jurisdiction.
(2.)It appears that opposite party No. 1 had obtained a decree against opposite party No. 2 in Execution Case No. 145 of 1955. In execution of the decree opposite party No. 1 attached nine Rollers which were in the custody of the petitioner for the purpose of repair and deshelling and re-shelling. The decree-holder opposite party No. 1 also got a notice issued and served on the petitioner under Order 21, Rule 46 of the Code of Civil Procedure, prohibiting the petitioner from delivering the Rollers "to any person whomsoever until further orders'". The case of the petitioner is that this notice was not served upon him, and between the 1st March, 1956, the judgment-debtor opposite party No. 2 took delivery of the Rollers in question from the petitioner. On the 10th September, 1957, the learned Subordinate Judge of Muzaffarpur held that the petitioner was a garnishee in respect of the Rollers and applied the provisions of Order 21, Rule 63-A' "on the principle of analogy". On the same date the learned Subordinate Judge directed that the execution case should proceed against the garnishee and issued notice under Order 21, Rule 22, Code of Civil Procedure, against the garnishee. Subsequently on the 4th December, 1957, the decree-holder filed a petition for amending the execution petition by adding the name of the petitioner as judgment-debtor. The amendment was allowed by the court and the name of the petitioner was added as one of the judgment-debtors in the decree.
(3.)In support of this application the learned Government Advocate contended that the orders of the learned Subordinate Judge dated the 10th September, 1957 and the 4th December, 1957, are illegal and without jurisdiction. It was pointed out that Order 21, Rules 63-A and 63-B have no application to the present case because the property attached in the execution case is not a debt but the properties are movable properties in the shape of Rollers. Section 64 of the Code of Civil Procedure reads as follows :
"64. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein tend any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Explanation. -- For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets."
Order 21, Rule 46 deals with the attachment of a debt, share or ether movable property not in possession of the judgment-debtor. Order 21. Rule 64 deals with the power of the court to sell and attach the property. Order 21, Rules 63-A to 63-H deal with* garnishee orders. Rules 63-A and 63-B read as follows :
"63-A. Where a debt (other than a debt secured by a mortgage or a debt recoverable only in a Revenue Court or a debt the amount of which exceeds the pecuniary jurisdiction of the Court) has been attached under Rule 46 and the debtor prohibited under Clause (i) of Sub-rule (1) of Rule 46 (hereinafter called the garnishee) does not pay the amount of the debt into Court in accordance with Rule 46, Sub-rule (3), the Court on the application of the decree-holder may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay into Court the debt due from him to the judgment-debtor. A copy of such notice shall, unless otherwise ordered by the Court, be served on the judgment-debtor.

63-B. (1) If the garnishee does not pay into Court the amount of the debt due from him to the judgment-debtor, and if he does not appear in answer to the notice issued under Rule 63-A, or does not dispute his liability to pay such debt to the judgment-debtor, then the Court may order the garnishee to comply with the terms of such notice, and on such order execution may issue against the garnishee as though, Such order were a decree against him. (2) If the garnishee appears in answer to the notice issued under Rule 63-A and disputes his liability to pay the debt attached, the Court, in-stead of making an order as aforesaid, may order that any issue or question necessary for determining his liability be tried as though it were an issue in, a suit, and may proceed to determine such issue, and upon the determination of such issue shall pass such order upon the notice as shall be just." In the present case it is manifest that there has been no attachment of any debt and Rule 63-A has, therefore, no application. In the course of argument counsel for the opposite parties did not seriously controvert the legal position. For these reasons we hold that the orders of the learned Subordinate Judge dated the 10th September, 1957, and the 4th December, 1957, are illegal and vitiated by an error of jurisdiction. We accordingly allow this application, set aside the orders of the learned Subordinate Judge dated the 10th September, 1957 and the 4th December, 1957. "(4) We accordingly allow this application. There will be no order as to costs.

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