BAHADURMULL RAMPURIA Vs. TRICUMDAS CALLIANJI

JUDGEMENT

(1.) These two appeals are directed against an order passed by the Court below under Order 38, Rule 5, Civil Procedure Code, attaching before judgment a sum of 3 lacs of rupees alleged to be due to defendant No. 1 from defendants Nos. 2 to 4. The facts of the case relevant to the present enquiry may be shortly stated thus:-The defendant No. 1 sold to defendants Nos. 2 to 4 (who may be shortly called the Rampurias) a certain mill called Callian Cotton Mills for Rs. 5 lacs by an Indenture dated the 21 July, 1921. The mill was under mortgage to one Manik Lal Mansukbhai and the sale was subject to the mortgage. On the same day an agreement was entered into between defendant No. 1 and the Rampurias under which the Rampurias bound themselves to pay half the charge which was estimated at Rs. 3 lacs and if the amount they had to pay to the mortgagee was less than that sum, or nothing at all, they would pay to defendant No. 1 the said sum of Rs. 3 lacs or the balance thereof less the sum paid to the mortgagee and if the sum payable to the mortgagee exceeded Rs. 3 lacs the purchasers would bear the excess. Previous to the sale, Manik Lal had brought a suit on his mortgage against the plaintiff and others and the Rampurias were subsequently added as defendants. The defendants have pleaded payment and the suit is still pending. Subsequent to the sale, the plaintiff instituted a suit against the defendant No. 1 and the Rampurias for recovery of the alleged balance of the consideration money of the sale of the said Mill by the plaintiff to defendant No. 1 and for the further relief that the amount found to be due to plaintiff from the defendant be declared to a charge on the said Mill as the lien of an unpaid vendor. In this suit, which is pending in the 3 Court of the Subordinate Judge at Hooghly, the plaintiff applied to attach before judgment the sum of Rs. 3 lacs above-mentioned in the hands of the Rampuria defendants. On 7 June, 1922, the Court below allowed the application and ordered the attachment. On 12 June the order was served on the Rampuria defendants and on 24 June they applied for a re-consideration of the order on the ground that it was passed in their absence and that it was an improper order. That application was rejected. The defendants have, therefore, preferred these two appeals against the order of the 7 June, 1922, Appeal No. 226 being by the first defendant Sukhdeo Das Rekhabdas and Appeal No. 303 by the Rampuria defendants. Both the appeals raise the same questions and are treated as analogous.

(2.) A preliminary objection has been taken by Sir Benode Mitter who appears for the plaintiff in Appeal No. 303 to the competency of the appeal by the Rampuria defendants. It is argued that a garnishee cannot appeal against a garnishee order under the Civil Procedure Code; he acquires a locus standi when the debt is sold in execution of the decree and the claim is sought to be enforced against him. It is not necessary to consider this question in the abstract, for in the present case the appellants are also defendants in the suit. It may safely be said that when a party to a suit feels himself aggrieved by a decree or an order from which he has a right of appeal the question as to whether the decree or order appealed from is to be revised at his instance, he not being materially affected by it, is one for the appellate Court to decide at the hearing of the appeal. It is urged by the learned Counsel that the Rampuria defendants are not affected by the order complained against, for, if the debt is not due by them, the order does not touch them and, if it is due, the order is a just and proper one and they cannot object to the payment of the money to any one to whom the Court directs them to pay. We do not think that this contention is well-founded. According to the plaintiffs case these defendants have retained this sum of Rs. 3 lacs for payment to the mortgagee if any amount is found due to him. The order of attachment that has been served upon them prohibits them from paying that amount to any one, the effect of the order being that, in the event of the mortgagee securing a decree in his suit, the defendant will be unable to satisfy it and probably thereby prevent the sale of the Mill and of their ether properties In execution of that decree. We accordingly hold that the appeal by defendants Nos. 2 to 4 is maintainable as they are parties to the suit and are thus affected by the order appealed from. It seems to us, however, that this question is not of much practical importance as the appeal by the defendant No. 1 whose right of appeal is unquestionable, will decide the same questions as are raised in the appeal by defendants Nos. 2 to 4.

(3.) The points raised in these appeals are, first, that the application made for attachment before judgment does not disclose facts on which an order under Order 38, Rule 5 can be passed and, secondly, that the money which has been attached is not a debt due to the defendant No. 1 within the meaning of Order 21, Rule 46. There are other minor objections taken which will be noticed in the course of the judgment.