BANK OF JAIPUR Vs. P G DAVEY

JUDGEMENT

(1.) THIS is a petition filed by the Bank of Jaipur Ltd. , the garnishee second respondent in E. P. No. 3057 Of 1953 in S. C. S. No. 686 of 1953 on the file of the court of Small Causes, Madras, against an order of a Bench of the court of Small causes setting aside the order of the Registrar, Court of Small Causes, In M. p. No 1984 of 1953, dated 23-10-1953, and allowing a New Trial Application filed by the decree-holder, P. O. Davey. The facts are briefly these:

(2.) THE Bank of Jaipur was served with a garnishee notice by the decree-holder in e. P. Wo. 2293 of 1963 prohibiting them from paying to the judgment-debtor, annamalai Mudaliar, a sum of Rs. 1575-6-0 said to be due by the garnishee to the judgment-debtor. That notice was duly served on the bank, but on that day the agent of the Bank was absent, and an accountant, who was in charge, received the notice but did not make a note of the date of the hearing, with the consequence that the garnished failed to appear in Court on the date fixed and make its representation. The Bank urged that it really owed only Rs. 107-16-9 to the judgment-debtor and riot the amount of Rs. 1575-6-0 stat-ed by the decree-holder to be owing by it to the judgment-debtor. As the garnishee bank failed to appear in court in response to the garnishee notice, the garnishee order was made absolute. Thereafter the decree-holder, Davey filed E. p. No. 3067 of 1953 and proceeded to execute the decree against the garnishee by attaching its goods for recovering Rs. 1575-6-0. Then, naturally, the Bank woke up in trepidation and applied to have the ex parte garnishee order set aside! and to be heard regarding its contention that only Rs. 107-15-0 were due by it to the judgment-debtor, and not Rs. 1575-6-0. It deposited the entire amount of Rs. 1575-6-0, covered by the ex parte garnishee order, in order to avoid attachment and sale in execution. The registrar believed the bank's story regarding the ignorant accountant's receiving the garnishee notice and failing to note the date of hearing with the consequence of the garnishee not appearing in court, and the garnishee order being made absolute. So he set aside the ex parte garnishee order and posted the matter for enquiry. Against that order of his, the decree-holder filed the New trial Application with the result noted above.

(3.) I have perused the entire records, and heard the learned counsel on both sides. Mr. R. Narasimhachari, for the petitioner bank, urged that the Bench of the Court of Small Causes went wrong in ignoring the specific ruling of the Full Bench of the small Cause Court in N. T. A. Nos. 334 and 335 of 1933 to the effect that there was power in the court to set aside an ex parte order passed against a garnishee on suffi-dent grounds being shown for the garnishee's absence, despite the fact that that ruling was confirmed by Beasley C. J. by dismissing C. R. P. No. 778 of 1935 (Mad) (A), filed against it. Mr. B. T. Sampath, for the respondent-decreeholder contended that the records in the new trial application of the Full Bench had been destroyed, and the order of Beasley C. J. , in the civil revision petition did not say under what provision of law an ex parte garnishee order could be set aside, whether under Order IX, Rule 13, C. P. C. . or under any other provision of law, and that it was clear that till 1933 no such power to set aside an ex parte garnishee order on sufficient reason being shown was recognised as existing in a small Cause Court in execution proceedings. I am afraid I cannot agree with him. First of all, a decision of a court does not depend for its validity on the number of years it has been in force, and the number of decisions in favour of the particular point. As an ancient sage has remarked, a room kept dark for a hundred years does not require another hundred years for light to be let in. The moment light is let in, the darkness automatically disappears. So too the moment a valid and (binding decision of a High Court is given as in C. R P. No. 778 of 1935 (Mad) (A), the days of non-decision disappear automatically, and this decision takes its place till it is displaced or overruled which is not the case here. That the non-essential records in the new trial application of the Small Cause court have been destroyed under the rules Is neither here nor there, because the decision of the Full Bench in the N. T. A. Nos. 334 and 335 of 1933 (Mad) (B) is before me, as it was before the lower court, and the learned Judges have specifically held in it as follows: