NAZAR MOHAMMAD KHAN Vs. JOBROWNE

JUDGEMENT

(1.) This appeal is by the decree holders. The question for determination is whether certain money belonging to the respondent is liable to attachment. The following facts are not disputed. The respondent is a retired railway servant. After his retirement he filled in the necessary form asking for payment of the money due to him on his account in the Provident Fund. The railway authorities requested the Reserve Bank to send a cheque to Messrs. Thomas Cook & Sons, Calcutta. The appellants, who have apparently a spy somewhere in the railway office, obtained an order from the Munsif, Chandpur, on Messrs. Thomas Cook & Sons attaching the money. Messrs. Thomas Cook & Sons in the meantime had returned the cheque to the railway authorities alleging that the respondent had no account with them and was unknown to them. The money is now held by the railway authorities in a suspense account. The appellants have applied in execution for its attachment. The respondent filed an objection under Section 47, Civil P.C., which was dismissed by the Munsif and allowed by the Subordinate Judge.

(2.) The case proceeded upon the basis that the money is liable to attachment as soon as it is paid over to the subscriber. But in the course of the argument the case in Nagindas Bhukhandas V/s. Bhai Gulabdas ( 20) 7 A.I.R. 1920 Bom. 58, was referred to. If the matter were res integra, I should probably be disposed to take the view taken by the learned Judges in that case, as giving effect to the provisions of the Act. In view however of the current of judicial opinion, it is not possible for me to take that view, sitting singly. In this connexion I may refer to the decision of McNair J. in Baramdeo Pandey V/s. Mrs. Fay Smith ( 40) 44 C.W.N. 637. The decision of the present appeal will depend upon whether the money has been paid to the respondent. In my judgment the test to apply is whether the railway has obtained a valid discharge. Mr. Bose (contended that the railway is discharged as soon as the instructions of the subscriber have been complied with. In this connexion, he referred to the decision in H.W. Parmer V/s. Cawasjee A.I.R. 1916 All. 336 in that case the money was paid to the Post Office at the subscriber's request to be remitted to him by money-order. The learned Judge held that the post office was acting as the agent of the judgment-debtor and the railway was discharged. In my judgment the railway authorities were discharged if, in asking the Reserve Bank to send the cheque to Messrs. Thomas Cook & Sons, they were acting in accordance with the instructions given by the respondent.

(3.) This case, therefore, depends upon the question of fact on which the learned Judges in the Courts below have differed in their opinion. It is difficult to place any interpretation upon the words actually used by the respondent when he filled up the form. On the one hand, Mr. Surhita argued that it was a request to the railway authorities to give the respondent a draft in favour of himself on Messrs. Thomas Cook & Sons. The contention of the appellants on the other hand is that it was a request to the railway to send the money to Messrs. Thomas Cook & Sons. Now, I do not propose to say anything on that question of fact beyond this that the evidence is so scanty that it would be impossible to form any definite opinion except on the view that the respondent was deliberately avoiding the witness-box. On that view, I should have no hesitation in allowing the appeal. Mr. Surhita, however, says that the respondent is perfectly willing to give evidence. The judgment of the learned Subordinate Judge cannot be regarded as a satisfactory judgment of reversal. He entirely ignores the main reason given by the Munsif for his decision that is to say, the erasure of the words to me and to the following address in the printed form. Prima facie it would be very difficult to reconcile that erasure with the respondent's case. Mr. Surhita says that his instructions are that the words to me were not erased by the respondent at all. That, however, is a matter upon which instructions are quite useless and the evidence of the respondent himself on oath is necessary.