ALSIDASS KAVERLAL Vs. J. HIRIYA GOWDER

JUDGEMENT

(1.) THIS is an appeal by the petitioner decree -holder against the order of the learned Subordinate Judge, Ootacamund in an execution application under Order 21, Rule 48 C. P. C. The facts are simple and are as follows:

(2.) NOW , what seems to have happened after this is that the court, without taking evidence and without any further enquiry, merely confirmed the prohibitory order issued, in respect of the sum of Rs. 7237 -75 alone. The decree -holder (appellant' was naturally aggrieved by this, as, in his view nearly Rs. 20,000 was clue to the judgment -debtor on the date of the attachment. He filed a fresh application under Order 21, Rule 46 C. P. C. praying for a fresh attachment of bill amounts, deposit amounts etc., totalling to nearly Rs. 20,000. This application was resisted by the judgment -debtor on several grounds, such as the ground that the decree was barred by limitation, and the ground that it was satisfied by private payments between the parties. These grounds were negatived on the merits. But the court below held, upon the point of maintainability, that no such petition could lie for any amount exceeding the amount of Rs. 7237 -75 reported as the ascertained amount by the Garrison Engineer. The court consequently dismissed the application as not maintainable.

(3.) THIS point is covered by authority. As learned counsel for the appellant points out, Order 45, Rule 1 of the Rules of be Supreme Court in the United Kingdom has been framed upon the lines almost identical with our own Order 21, Rule 46 C. P. C. An authority precisely in point, and relating to almost identical circumstances, is O. Driscoll v. Manchester Insurance Committee, 1951 3 K. B. 499. What happened in that case was that a panel doctor had done certain work under agreement with an Insurance Committee which bad received funds in respect of the medical benefit from the National Insurance Commissioners. The debt owing to the doctor was actually unascertained, but the court nevertheless held that an attaching creditor could attach this liability under Order 45, Rule 1 of the Supreme Court rules, notwithstanding the fact that the share payable to the judgment -debtor had not been ascertained at all. Again, it seems to me clear that the court would not at all be justified in accepting the bare statement of the garnishee that no debt is due. Under those circumstances, on the contrary, the court must clearly make an enquiry and come to its independen conclusion. For this, proposition, reference might be made to Moideen Batcha v. Sulaiman Sahib, 1955 2 M. L. J. 522: (AIR 1956 Mad 163), where Krishnaswami Nayudu, J. held that under the circumstances, the court may even appoint a Receiver in execution and direct an enquiry, without acting upon the statement of the gamishee.