KAZIM JAWAZ JUNG Vs. MIR MOHAMAD ALI JAFERI

JUDGEMENT

(1.) This appeal is filed by a garnishee against an order passed by the learned Fourth Additional Judge, City, Civil Court, Hyderabad directing him to deposit a sum of Rs. 6953-81 into court by 16-9-1965. The decree-holder in O. S. No. 50/61 levied execution against his judgment-debtor for recovery of money due under the decree. In order to realise the decree amount, the decree-holder obtained a prohibitory order restraining the judgment-debtors garnishee from paying the amount due to the judgment-debtor. Though the garnishee was absent in the first instance, he was finally permitted to file an affidavit in which we disputed his liability to the judgment-debtor. But on a consideration of the pleas advanced by the garnishee, the court below held against him and directed him to produce the amount into court as required by the decree-holder. Aggrieved by the said order, the garnishee filed the above appeal.

(2.) The circumstances under which the garnishee is sought to be made liable are as follows:--- The judgment-debtor owned a share in the Estate of one Nawab Jurshid Jahi and a suit O. S. 14/58 is pending in the High Court of Andhra Pradesh for partition of the paigah among all the heirs. The suit ended in a compromise preliminary decree date 8-6-1963 and it is stated before me that a final decree has not yet been passed. Pending the final decree proceedings, the judgment-debtor sold his undivided interest in favour of two persons one of whom is the appellant herein, namely Nawab Kazim Nawaz Jung under a registered sale deed dated 22-1-1964. A sum of Rs. 11,900.00 was paid in cash before the Sub Registrar at the time of the registration. So far as the balance of Rs. 35,700.00 is concerned, it is provided as follows in para 16(a) of the sale deed.

(3.) Hence the main question for consideration is whether the purchaser (Garnishee) can be directed to pay the money to the vendors (judgment-debtors) decree-holder. Under Order 21, Rule 46, Civil P. C. attachment is made in the case of a debt not secured by a negotiable instrument by an order prohibiting the creditor from recovering the debt and the debtor from making payment until further orders of the court. In the case of other moveable property attachment is made by issuing an order prohibiting the person in possession of the same from giving it over to the judgment-debtor. This is not a case where tangible movable property belong to the judgment-debtor was kept in the custody of the garnishee. Hence the only clause applicable is C1. (a) of R. 46 (1) of O. 21, which relates to a simple debt. Under Order 21, Rule 46-A, Civil P. C. (Andhra Pradesh and Madras amendment) the court in such a case shall issue a notice to the person liable to pay the debt to the judgment debtor to show cause why he should not pay the debt to the decree-holder. Under Rule 46-B if the said person who is called a garnishee does not appear or does not dispute the liability, the court may direct him to deposit into court so much of the amount as may be sufficient to satisfy the decree etc. Under Rule 46-C the court has got the power to decide the question if the garnishee disputes his liability and the court, after deciding that the garnishee is liable, may direct him to deposit the amount into court him to deposit the amount into court for the satisfaction of the decree. The learned consent into court for the satisfaction of the decree. The learned counsel for the appellant placed reliance on a decision of this court in C. V. Raghavayya v. C. T. Distributors, (AIR 1958 AP 31) in which it was held that if an amount is kept in deposit by a judgment debtor with a third party who has a claim upon the said amount, the judgment-debtors decree-holder is not entitled to proceed against the said amount until it was determined that such third person has no claim upon the said amount,. It was further observed that the decree-holder cannot by means of attachment stand in a better position as regards the garnishee than the judgment-debtor and obtain from him a relief which the judgment-debtor himself cannot obtain. In Gajraj v. Hukamchand, (AIR 1939 Bom 90) it was held that money in the hands of a garnishee which is payable to the judgment-debtor only in certain contingencies cannot be recovered by the decree-holder. In Shanti Prasad v. Director of Enforcement, (AIR 1962 SC 1764) a contingent debt is explained as a sum of money payable only when a contingency happens or does not happen in future. It is not the same thing as a present debt which is merely payable in future. The principle underlying the foregoing cases appears t be that a decree-holder can proceed against a garnishee only in a case where the judgment-debtor had the present right to recover the money for himself from his judgment-debtor (garnishee). But if the money is payable to the judgment-debtor only on a certain contingency, the decree-holder will be subject to the same disability as his judgment-debtor and has to wait till the happening of the said contingency. Applying these principles to the facts of the present case, it is clearly mentioned in paragraph 16 (a) of the sale deed that the balance of the sale price will be paid to the vendor (judgment-debtor) only on the settlement of the disputes as regards the alienations, etc,. and on the final allotment of the properties to the judgment debtor in the final decree. Until the said event takes place, the judgment-debtor himself cannot demand the unpaid price from the purchaser. It follows, therefore, that the decree-holder who is merely seeking to enforce the right of his judgment-debtor is equally debarred from claiming the money from the garnishee at this stage .