HAJI ABDULLA SAHIB Vs. ALANJI ABDUL LATHIEF SAHIB

JUDGEMENT

(1.) A debt owing to the late Arcot Mohim was attached in execution of decrees of this court against his eldest son Abdul Rahim, and garnishee orders were obtained on the Original Side of this court for its payment into court in satisfaction of the above decrees against Abdul Rahim. The debt was not due to Abdul Rahim but to his deceased father, who was represented by the whole body of co-heirs, including Abdul Rahim, who were entitled to share in the beneficial surplus of the estate of the deceased after satisfying his debts. The garnishee order was therefore wrongly made, as it is well settled that debts owing to the judgment debtor and another are not the proper subjects of garnishee proceedings, Macdonald v. Tacquash Gold Mines Co. (1884) 13 Q.B.D. 585 still less debts due to the estate of a deceased person of whom the judgment debtor is merely a co-heir. Marshall v. James (1905) 1Ch. 432 and Burrell v. Read (1894) 11 T.L.R. 86 are authorities for the proposition that a garnishee order so improperly made may be set aside and a refund ordered at the instance of the other parties interested in the debt, such as the other co-heirs of the judgment debtor, or as in this case the Receiver appointed in Original suit No. 36 of 1913 in the Court of the Suboridinate Judge of North Arcot in execution of the decree in that suit against the representatives of the deceased. That Receiver who is the present plaintiff instituted Original Suit No. 92 of 1916 in the Court of the Subordinate Judge of North Arcot which was transferred to this Court for the recovery from the 1st defendant the garnishee and the 2nd and 3rd defendants the attaching decree-holders of the sums paid out to the 2nd and 3rd defendants in the garnishee proceedings. Coutts Trotter, J. gave him a decree against the 2nd and 3rd defendants who have appealed. Exhibit KK is an application put in by the other co-heirs of the deceased Arcot Mohidin under Rule 247 of Original Side Rules to raise the attachment to the extent of 340 out of 480 shares, but the learned Judge acting apparently under Rule 264 read with Rule 262 of the Original Side Rules made an order that the garnishee should pay the money into court and the attaching creditors be at liberty to apply to draw it out. The order also provided that " if the claimants herein shall have any good cause of action against the garnishees herein, that cause of action will be entirely unaffected by this order." The effect of this order in my opinion was in the exercise of the discretion vested in him under Rule 264, the learned Judge declined to hear and determine the claim made by the other representatives of the late Arcot Mohidin and left them to enforce their right by suit: but even if it be regarded as a decision as against the claimants, they would still be entitled under the Code to sue within the year to establish their right.

(2.) In these circumstances it is I think clear in any view that the receiver who has been appointed in execution of a decree against the estate of the late Arcot Mohidin in the hands of his representatives is entitled to recover monies forming part of that estate which have been wrongly paid to the 2nd and 3rd defendants under the garnishee proceedings already referred to. I am, also, clearly of opinion that the 2nd and 3rd defedants have no claim to rateable distribution as their attachments are in execution of decrees against Abdul Rahim who could not himself prevent the suit debt, which forms part of the estate of the late Arcot Mohidin, being taken in execution of the decree against himself and the other co- heirs of the late Arcot Mohidin to the extent of his estate in their hands, the very decree in execution of which the plaintiff has been appointed Receiver. In this view of the case no further question of the right to rateable distribution arises. In the result the appeal fails except as to the point dealt with by my learned brother and is dismissed with costs of the Plaintiff. Memorandum of objections is dismissed with costs of 1st defendant. Krishnan, J.

(3.) This is an appeal against the decree passed in the Original Side of this Court in a suit brought by a receiver appointed by the Subordinate Court of North Arcot in execution of a decree passed by that Court in O.S. No. 36 of 1913, on its file. That was a suit by certain creditors of a deceased Mahomedan, one M. Hussain Sahib against all his heirs for payment of a debt due by him to them ; and a decree was passed in their favour for the amount due to them against the assets of the deceased as well as against his son, Abdul Rahim personally. In execution of that decree a debt due by the 1st defendant to the deceased was attached by them and to realise the money, if necessary by suit, the receiver was appointed and he brings the present suit.