TAYABALI GULAM HUSEIN Vs. ATMARAM SAKHARAM VANI

JUDGEMENT

(1.) In execution of a decree in Suit 689 of 1904 against Baba Ismail, a debt of Rs. 1,023, alleged to be due to the judgment-debtor by the firm of Tyaballi Gulam Hussein, the present defendants, was attached by the judgment-creditor, the present plaintiff, under Section 268 of the Code of 1882. The garnishees received notice to bring into Court the amount of the alleged debt, but as they disputed their liability they objected to the attachment and the judgment-creditor having put in an answer they gave evidence -before the executing Court to prove that they in fact owed nothing to the judgment-debtor as, although Rs. 594 were due by them to the judgment-debtor s Chalisgaon shop, Rs. 676 was due to them by the judgment-debtor s Pachora shop. This evidence was given on the 4th of September 1905 and thereafter on the same day the plaintiff applied for sale of the debt of Rs. 594. The executing Court then ordered that this debt should be - sold. On the sale it was purchased by the plaintiff who now brings this suit to recover the Rs. 594 from the garnishees.

(2.) The garnishees set up the same facts in defence as they set up when they unsuccessfully objected to the attachment. The learned Judge in the lower appellate Court was of opinion that the Chalisgaon and the Pachora accounts being separat e the defendant could not claim that the Pachora debt should be taken into account, for the judgment-creditor had not made himself responsible for the judgment-debtor s debts having only purchased one of his assets. If this were the only question in the case we should reverse the decree of the Assistant Judge, for, as decided in Tapp v. Jones (1875) L.R. 10 Q.B. 591, 593, if a cross debt were due to the garnishee at the date of the attachment it is obviously just that there should be a right of set-off in his favour: this principle is recognised by the Indian Legislature in the Transfer of Property Act, Section 132 (see ill. (i)). We also do not agree with the Subordinate Judge in the trial Court that the equity arising from the cross debt could not be set up by the defendants except on payment of a Court fee as on a counter-claim.

(3.) The more serious question for the defendants is, we think whether the defence of set off is open to them after their failure to raise the attachment as no suit has been filed by them within a year from the 4th of September 1905 to establish the right alleged by them and not allowed by the executing Court.