LUKKA VARGHESE Vs. DEVASIA VARKEY

JUDGEMENT

(1.) In execution of a decree, the appellant judgment creditor, attached a debt due to the judgment debtor, a bank, from the respondent. On the motion of the appellant, notice under O.21 R.46A was served on the respondent on the 10th February, 1955. The respondent entered appearance, and at his instance the case was adjourned to the 4th March, 1955; on that day, the respondent's prayer for a period of six months being allowed to him to deposit the amount of the debt, was disallowed. On the 1st April 1955, the court passed an order under O.21 R.46B and directed warrant to issue to the respondent. Upon this, the respondent made an application on the 6th October, 1955, for exemption from personal execution. While this was pending, the bank was ordered to be wound up on the 7th November, 1956, upon a petition presented on the 17th September, 1956. The respondent then applied for stay of proceedings purporting to be under S.446 of the Companies Act, 1956. The two courts have allowed the application.

(2.) S.446 sub-s.(1) has enacted :

(3.) In English Law, where the garnishee does not appear and contest his liability, the order is may be made absolute, and execution may be levied against him. The effect of an order absolute is stated thus, in 16 Halsbury's Laws of England, third edition page 90, paragraph 136: