SUBBIER Vs. MOIDEEN PITCHAI

JUDGEMENT

(1.) In this case the facts are that a decree-holder in a small cause suit applied for attachment of a debt alleged to be due by one Khadar Moideen to the judgment-debtor. Notice of that application was served upon Khadar Moideen as garnishee and also upon the widow of the judgment-debtor as representing his estate. She did not appear but the garnishee appeared and put in a counter-statement in which he alleged three things, first, that the debt had never been due to the judgment-debtor, second, that it had been assigned and he had promised to pay the assignee; and thirdly, that the amount of the debt was not Rs. 350 as claimed by the decree-holder but Rs. 300. That application came before the District Munsif, the garnishee appearing, and the District Munsif passed an order in these words: "Attachment is confirmed." In due course, the debt which ha3 been attached was brought to sale as the property of the judgment-debtor in the small cause suit and was purchased by the present plaintiff, who was himself the decree-holder. The present plaintiff then sued to recover the debt.

(2.) It has been held by the District Munsif and on appeal by the Subordinate Judge that there never was any debt due by the garnishee to the judgment-debtor, and in fact that the debt which had been supposed to be due to the judgment-debtor was due not to him but to his widow, and consequently the suit was dismissed.

(3.) The question for our determination is whether it was open to those Courts to go into this question at all, and, in my judgment, it was not. By Section 11 of the Civil Procedure Code, no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. Now the whole matter decided was directly in issue in the execution and garnishee proceedings in 1913. It is true that the order made in 1913 was not at once final, because under Order 21, Rule 62, where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, the order shall be conclusive. Now the garnishee did not choose within the time limited by the Indian Limitation Act, namely, a year, to bring in any such suit, and so the matter becomes conclusive. It having been decided by the Court in 1913 that the debt was a debt for Rs. 350 due by the garnishee to the judgment-debtor, as long as that order stands, it cannot be re-agitated as between the parties to those proceedings.