SUBBARAMAN POTTI Vs. GANGADHARAN

JUDGEMENT

(1.) The appellant is the decree holder in O. S.267/55 of the Munsiff Court of Trivandrum. An attachment before judgment was placed by him on certain amounts in the possession of the respondent garnishee due to the defendant judgment debtor by way of balance of sale consideration. After decree, execution was duly taken for realisation of the amount in the hands of the garnishee. The garnishee stated in his objection that the defendant judgment debtor had no interest in the property at the time he executed, the sale deed in his (garnishee's) favour. The property was later on sold in execution of a decree obtained by a prior creditor, from whom the garnishee himself had purchased the property. Thus the lien the judgment debtor had over the unpaid purchase money was lost, and therefore the garnishee is not liable for the amount and the present proceedings taken against him for recovery of the amount are improper and infructuous. These objections were upheld and the action sought to be taken against the garnishee was disallowed. The order of the learned Munsiff has been affirmed in appeal by the District judge.

(2.) Before me it is argued for the appellant that the garnishee has colluded with the judgment debtor to defeat him and that the contention of the garnishee that at the time he took the sale deed the vendor judgment debtor, had no right in the property is not correct. He is entitled to proceed against the money in the hands of the garnishee irrespective of the fact that the garnishee got possession of the property or not. I do not think the position contended for is tenable. Ex. D1 is the sale deed taken by the garnishee from the judgment debtor Madhavan Nair. It is dated 15-11-1951. Out of the total consideration of Rs. 9750/- a sum of Rs. 6000/- was reserved for future payment if the property was reduced to the possession of the garnishee. The property at the time was outstanding on mortgage and for redemption of the mortgage another Rs. 3435/- was reserved. The balance viz., Rs. 315/- was paid in cash. Regarding the reservation of Rs. 6000/- the document is clear and definite that the amount need be paid only on reducing the property to his possession.

(3.) This amount, therefore, will become payable, only when the purchaser gets possession of the property. But before such possession could be taken the property was sold away in court auction in O. S.24/1115 of the District Court of Trivandrum. In execution of that decree the property was purchased by the decree holder Venkita Subban Ramalingom Iyen. The liability on the part of the garnishee regarding the amount reserved in the sale deed viz., Rs. 6000/was' thus extinguished. The case of the appellant is that the garnishee in collusion with the judgment debtor purposely avoided taking possession of the property from the mortgagee and in the circumstances the garnishee's contention that as he did not get possession he is not liable to deposit the amount, must be rejected as wanting in good faith. This is not correct. All diligent steps were taken by the garnishee to get the property redeemed from the mortgagee and a suit O. S.279/51 was also filed for redemption. But before his attempt could succeed, the earlier creditor, viz., the plaintiff in O. S.24/1115 entered the scene and set at naught such attempt on his part. Of course, from the decree holder purchaser in O. S.24/1115 a further purchase was taken by the garnishee and the property was thus reduced to his possession. But on account of this circumstance the amount reserved in Ex. D1 does not become payable to his vendor Madhavan Nair, because it is not by virtue of Ex. D1 that he got possession of the property. As already indicated, there is the clear provision in Ex. D1 that the garnishee purchaser need pay the amount only when possession was taken by him of the property.