Patna High Court
Imperial Bank Of India vs Mt. Bibi Sayeedan on 30 September, 1958
Equivalent citations: AIR1960PAT132, AIR 1960 PATNA 132
JUDGMENT Raj Kishore Prasad, J.
1. This appeal by the garnished arises out of a garnishee proceeding in which the objection of the appellant has been rejected.
2. In order to appreciate the points raised in the appeal It is necessary to set out briefly the relevant facts material for the decision of the present appeal :
3. The decree-holder-respondent, who is the widow of one Nadir Ali, obtained a decree on account of her dower debt against the heirs of her deceased husband Nadir Ali in a money suit brought by her against them. This decree was put into execution, and, the decretal amount was sought to be realised from the assets of Nadir Ali in the hands of his heirs.
4. Nadir Ali had a Fixed Deposit Account with the Imperial Bank of India at Gaya, to the tune of Rs. 6,090/- in his name. During the pendency of the money suit brought by the decree-holder, in which the decree under execution was passed, the plaintiff-decree-holder respondent on 17-11-1949, made an application under Order 38, Rule 5 and Section 151 of the Code of Civil Procedure, and prayed for issue of an attachment before judgment. On that application the trial Judge passed the following order :
"Issue notice to defendants to show cases why the attachment before judgment sought should not be allowed. This should be done after plaintiff files requisites by 24-11-1949. Meanwhile a copy of this order and petition may be forwarded to the Agent of the Imperial Bank of India, at Gaya requesting him not to make payment of this money to any party till further orders."
On receipt of this prohibitory order the Imperial Bank of India, the appellant, sent a reply on 25-11-1949, to the following effect:
"With reference to your Attachment Order dated 17-11-1949, we beg to advise that we do not appear to maintain any current account in the name of the late Nadir Ali.
The late Nadir AH maintained a Fixed Deposit Account with us the proceeds of which amounting to Rs. 6,090/- are held by us in suspense and we have noted not to pay this amount to any one without the production of Succession Certificate and unless this Prohibitory Order has been withdrawn by the Court."
This reply of the appellant was acknowledged by the trial Judge and ordered to be kept on the record by his order No. 16, dated 30-11-1949. No cause having been shown by the defendant, attachment before judgment was issued on 11-1-1950. The order passed by the trial Judge on the said date is in the following terms :
"Notice to show cause why attachment before judgment be not issued served on all the defendants. Cause not shown. Plaintiff's pleader urges that attachment before judgment be issued in respect of Rs. 6,000/- which is lying in fixed deposit in the Imperial Bank of Gaya in the name of the husband of the plaintiff and Rs. 2,000/- as ijara money under a registered ijara deed executed by Mosst. Mahmooda in favour of the plaintiff's husband. Requisites for issue of attachment before judgment filed. Let attachment before judgment be new issued as prayed for returnable by 25-1-1950."
The attachment issued in pursuance of the above order of the Court was served and it was so recorded in the order sheet of the Court below under order No. 22 dated 20-2-1950.
5. When ultimately a decree was passed in favour of the plaintiff-decree-holder respondent and when it was put into execution a notice under Order 21, Rule 63A was issued to the appellant. In response to the notice issued to the appellant under Order 21, Rule 63A of the Civil Procedure Code, the Bank-appellant filed an objection before the executing Court on 29-8-1951. The principal objection of the appellant was, as mentioned in paragraph 2, Clause (i) of the objection, that unless Letters of Administration of Succession Certificate are produced the Bank would not get an effective discharge in respect of "the debts" due by the Bank to Nadir Ali, deceased. There was also an objection regarding attachment. The learned Subordinate Judge by his order dated 4-12-1952, overruled the objections of the Bank-appellant and asked the Bank to pay the amount in question to the decree-holder in satisfaction of the decree. From this order the present appeal has been preferred by the Bank under Order 21, Rule 63H of the Code of Civil Procedure.
6. Mr. S. N. Bhattacharya who appeared for the appellant contended that no proceeding under Order 21, Rule 46 of the Code of Civil Procedure having been taken in the suit, or in the execution proceeding, no garnishee proceeding could be started. He further submitted that even if it be assumed that the prohibitory order issued by the trial Judge in the suit itself was an order under Rule 46 of Order 21, even then as Clause (2) of Rule 46 of Order 21 of the Code had not been complied with as there was no evidence to prove the same, the whole proceeding was without jurisdiction and ineffective in law. In support of his contention he relied on a Bench decision of this Court in Narendra Prasad Sinha v. Maharani Janki Kuer, AIR 1947 Pat 385.
7. There is no doubt that under Order 21, Rule 63A of the Code of Civil Procedure the foundation of a garnishee proceeding is an attachment made under Rule 46 of Order 21 of the Code of Civil Procedure. Rule 63A of Order 21 provides that where a debt, other than the debts mentioned therein with which we are not concerned, has been attached under Rule 46 and the debtor has been prohibited under Clause (i) of Sub-rule (1) of Rule 46 and the garnishee does not repay the amount of the debt to the Court in accordance with Rule 46, Sub-rule (3) of Order 21, the Court, on the application of the decree-holder, may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay the debt due from him to the judgment-debtor. Garnishee proceedings, therefore, in respect of a debt, can be started only after the debt has been attached under Rule 46 of Order 21. This follows from the language of Rule 63A of Order 21.
The above view taken by me is supported by a Bench decision of the Calcutta High Court in Kurseong Hydro-Electric Supply Co. Ltd. v. Lakshmi Narayan Sukhani, ILR (1941) 1 Cal 389: (AIR 1941 Cal 364), in which it was held that garnishee proceedings in respect of a debt can be started only when the debt is both attachable under Order 21. Rule 46 of the Code of Civil Procedure and in fact has been so attached. The correspoding provision of Order 21, Rule 63A of our Court in the Calcutta High Court is Order 21, Rule 46A. The language of Rule 46A of the Calcutta High Court and Rule 63A of the Patna High Court of Order 21 is the same. On the language of Rule 63A of Patna, like Rule 46A of Order 21 of Calcutta, it is plain that if a debt attachable under Order 21, Rule 40 tad not in fact been attached, garnishee proceedings cannot be taken.
8. In the present case admittedly a notice under Order 21, Rule 63A had been issued to the appellant calling upon it to appear before the Court and show cause why it should not pay into Court the debt due from it. So far there is no dispute. But the contention of Mr. Bhattacharya is that as no attachment has been made in accordance with Order 21, Rule 46, the issue of the notice under Order 21, Rule 63A is without jurisdiction. On the above contention of Mr. Bhattacharya, therefore, two questions arise : first, whether in fact there was an attachment under Rule 46 of Order 21? and, secondly, whether Clause (2) of Rule 46 of Order 21 was complied with?
9. The first question, therefore, is was the debt in question attached in fact under Rule 46 (1) of Order 21?
10. For an answer to this question one has to look to the order-sheet of the trial Court in the Money Suit. On a reference to the Order of 17-11-1949, which has been reproduced in extenso earlier, it will be found that the provision of law under which the prohibitory order was issued to the appellant on 17-11-1949, is not mentioned in the order itself. It further appears that the above order was issued on the application of the plaintiff-decree-holder under Order 38, Rule 5 and Section 151 of the Code praying for attachment before judgment. But an order for attachment before judgment can be issued only against the defendant of the suit as provided in Order 38, Rule 5.
The appellant admittedly was not a party to the suit, and, therefore, the prohibitory order in question could not have possibly been issued against the appellant under Order 38, Rule 5 of the Code. Such a prohibitory order can be issued against a person, who is not a defendant to the suit, under Rule 46 of Order 21. When there is a specific provision in the Code, no recourse can be had to the inherent powers of the Court under Section 151. Order 21, Rule 46 (1) (c) (iii) provides that in the case of other movable property not in the possession of the judgment-debtor, except property deposited in or in the custody of any Court, the attachment shall be made by a written order prohibiting the person in possession of the same from giving it over to the judgment-debtor. The order of 17-11-1948 complies with the requirements of Rule 46 (1) (c) (iii) of Order 21.
On a reference to the order referred to above, therefore, notwithstanding that there is no mention of the provision of law under which the prohibitory order was issued on 17-11-1949, to the appellant, there is no doubt in my mind that the said prohibitory order was made under Rule 46 (1) (c) (iii) of Order 21. The mere absence of the provision of law under which a Court acts in a particular case cannot be a ground for urging that the Court acted not in accordance with law, but contrary to the provisions of law. Under Section 114, Illustration (e), of the Indian Evidence Act, the Court may presume that judicial and official acts have been regularly performed. When, therefore, Order 38, Rule 5 did not apply to the, case under consideration and Order 21, Rule 46 did apply, it must be presumed that the Court issued the prohibitory order under Rule 46, Clause (1) of Order 21 of the Code.
11. The first question, therefore, must be answered in the affirmative by holding that the debt in question was in fact attached under Rule 46(1)(c)(iii) of Order 21 of the Code.
12. The second question now is, was Clause (2) of Rule 46, Order 21, complied with?
13. The principal objection of Mr. Bhattacharya is that Clause (2) of Rule 46, of Order 21 had not been complied with. Clause (2) of Rule 46 of Order 21 provides that a copy of such prohibitory order shall be affixed on some conspicuous part of the Court house and another copy shall be sent to the person in possession of the same. In the present case the letter of the Bank sent to the Court on 25-11-1949, makes it clear that the attachment order of 17-11-1949 was received by the appellant. He has not disputed, nor can it be disputed, that the copy of the prohibitory order was sent to and received by the appellant. The second part of Clause (2) of Rule 49 of Order 21, therefore, is satisfied.
14. Then remains the question, whether the first part of Clause (2) of Rule 46 of Order 21 was observed. There is no doubt as a matter of construction that both the conditions envisaged by Clause (2) of Rule 46 of Order 21 must be complied with. There can, therefore, be no doubt, as rightly contended by Mr. Bhattacharya that the provisions of Order 21, Rule 46 (2) being mandatory, the failure to comply with any one of the requirements thereof nullifies the whole proceeding and the defect is not curable under Section 99 of the Code, as held by the Division Bench of this Court in Narendra Prasad Sinha v Maharani Janki Kuer, AIR 1947 Pat 385, wherein it was further held that to hold otherwise would be to use Section 99 to cure the proceeding itself, and not any mere error, defect or irregularity therein, and consequently, the failure to affix a copy of the prohibitory order on a conspicuous part of the Court-house will render the attachment invalid.
15. The question, however, arises if this objection regarding non-observance of the first part of Order 21, Rule 46, Clause (2) on the facts of the present case can be sustained. In the show cause petition filed by the appellant on 29-8-1951, in pursuance of the notice under Order 21. Rule 63A the appellant on this question made only the following specific objection which is to be found in paragraph 3, Clause (iii) which runs thus :
"(iii) That an attachment under Order 21, Rule 46 could be made only if your petitioner's creditor Nadir Ali had been the judgment-debtor, which is not the case here. The attachment was therefore bad in law. Further there was no legal attachment as warranted under the provisions of Order 38, Rule 5, Civil Procedure Code and as such your petitioner is not legally bound to pay the money."
From the above objection it is clear enough that the only ground on which it was said that the attachment under Order 21, Rule 46 was bad in law was that it could be made only if Nadir AH had been the judgment-debtor, which was not the case here. In the objection there is no whisper regarding non-compliance of the mandatory provisions of Clause (2) of Rule 46 of Order 21. On the other hand, the appellant itself took it that the attachment had been made under Order 21, Rule 46. We, therefore, find from the objection of the appellant that the objection which is now being raised was not raised at all.
The question whether the first part of Clause (2) of Rule 46 of Order 21 was also complied with or not is purely a question of fact which has to be agitated and specifically pleaded and proved. It was for the appellant to establish, if it thought it was a fact, that the prohibitory order made by the Court, which I have held to be under Rule 46, Clause (1) of Order 21 and a copy of which was sent to the appellant, was not served as required by the first part of Clause (2) of Rule 46 of Order 21. In these circumstances, in the absence of evidence I cannot hold that Clause (2) of Rule 46 of Order 21 was not complied with. On the other hand, relying on Section 114, Illustration (e) of the Indian Evidence Act, it must be held that the provisions of law were complied with.
This view which I have taken is supported by a decision of the Privy Council in Mohammad Akbar Khan v. Mian Musharaf Shah, AIR 1934 PC 217: 61 Ind App 371. Their Lordships of the Privy Council held that if there was evidence that the land was attached, then in the absence of any evidence to the contrary, it ought to be presumed that all necessary formalities were complied with. Their Lordships were considering Rule 54 of Order 21 and relied on Section 114. Evidence Act. The above principles will apply also to Rule 46 of Order 21.
16. In the present case there is ample evidence to show, first, that an attachment, in respect of the debt in question, was made by the Court by a written order as contemplated by Rule 46 (1) (c) (iii) of Order 21, prohibiting the appellant from giving it over to the judgment-debtors; and secondly, that this prohibitory order was served upon the appellant, who acknowledged it by its letter dated 25-11-1949. Admittedly, there is no positive evidence that the first part of Clause (2) of Rule 46 (2) of Order 21 was not complied with. On the other hand, the order of the Court dated 20-2-1950 shown that the attachment issued in pursuance of the order of the Court dated 11-1-1950, was served. The order of 11-1-1950 speaks also of the amount in deposit) and an attachment in respect thereof could be only under Rule 46 of Order 21 and not under Order 38 Rule 5.
17. In these circumstances, in the absence of any evidence to the contrary, it ought to be presumed that the first part of Clause (2) of Rule 46 of Order 21 was also complied with; in other words, it ought to be presumed, under Section 114 Evidence Act, that the prohibitory order issued by tile Court under Rule 46 (1) of Order 21, was affixed, as required by Clause (2) of Rule 46 of Order 21, on some conspicuous part of the Court house also.
18. The second question also, therefore, must be answered in the affirmative by holding that Clause (2) of Rule 46 of Order 21 was complied with.
19. I would, therefore, reject the aforesaid contention pointedly pressed on my attention and persistently argued by Mr. Bhattacharya as invalid.
20. Lastly, it was contended that the appellant was not bound to pay the money lying in deposit with it in the name of Nadir Ali in spite of the order of the Court below, because as no Succession Certificate had been produced the appellant will not get a valid discharge from its liability in respect of the deposit in question. In support of his contention Mr. Bhattacharya relied on Section 214 of the Indian Succession Act which provides for the production of a Succession Certificate. It is, however, admitted and not denied, that the plaintiff-decree-holder as well as the judgment-debtors who are parties to the suit brought by the decree-holder-respondent and who are parties to the decree under execution, are heirs of the deceased Nadir Ali.
The objection, however, of Mr. Bhattacharya is that, if supposing, some other heir, who is not a party to the decree under execution, comes forward later on and claims the amount or a share in the amount lying in deposit with the appellant, then the appellant will be in a very precarious position and it may have to pay the amount twice over. It is well settled in Muhammadan Law, as will appear from Section 294 of Mulla's Muhammadan Law, Fourteenth Edition, that although the heirs of a deceased Muhammadan are not personally liable for the dower debt, each heir is liable for the debt to the extent only of a share of the debt proportionate to the share of the estate. After the death of her husband, therefore, if a widow brings a suit for recovery of her dower, it must be brought against all the heirs of her deceased husband. The present suit in which the decree under execution was passed was such a suit and in the presence of the heirs of the deceased Nadir Ali the decree in favour of the respondent was passed.
Prima facie, therefore, there is no doubt that all the heirs of Nadir Ali, who were alive at the date of the suit, are parties to the decree under execution. The apprehension of the appellant, therefore, about any other heir coming in and making a claim in the future against the Bank-appellant is entirely misconceived. To make the position of the Bank more secure the decree-holder-respondent has filed an affidavit dated 18-9-1958, in this Court on 22-9-1958, in paragraph 6 of which it is stated as below :
"6--That all the heirs of Sk. Nadir Ali are parties to this proceeding and were parties in the suit. In case it is proved that Sk. Nadir Ali left more heirs the decree-holder undertakes to indemnify the bank."
On this undertaking of the decree-holder-respondent there can be no doubt that the position of the appellant is absolutely secure and there is no risk for the appellant to pay the money twice over to any person. But that apart, I cannot understand, why an order of the Court should not be effective to give an absolute discharge from all liability to the appellant in respect of the money in question due to Nadir Ali? In this connection the Court below observed :
"In my opinion, this Court is competent to ask the Bank to pay off the entire amount lying in deposit to the credit of Nadir Ali deceased towards the satisfaction of the decree obtained by the widow of Nadir Ali and this order of the Court will have the effect of absolving the Bank of their liability to pay the amount in question to the heirs of Nadir Ali. It is not necessary for the Bank in a case like the present one to insist upon the production of a succession certificate as required under Section 214 of the Indian Succession Act, because the decree-holder or the judgment-debtors do not claim the amount in question from the Bank as successors entitled to the effects of the deceased Nadir Ali. Had they claimed this amount in that capacity the Bank would have been quite justified to ask for a Succession Certificate.
Here the position is quite different because the amount in question is sought to be realised from the Bank in satisfaction of a decree passed against the legal representatives of Nadir Ali deceased and the decree is for the payment of money out of the assets of Nadir Ali deceased for the reasons that the decree is on account of the dower due from Nadir Ali. Admittedly the amount in question in deposit with the Bank forms part of the assets of Nadir Ali and as such if is liable to be appropriated in satisfaction of a Court's decree as contemplated under Section 52 of the Civil Procedure Code."
21. I entirely agree with the above observations of the Court below. To a case like the present the appellant cannot in law insist upon the production of a Succession Certificate and ask the Court that the decree-holder must produce a Succession Certificate before the money is paid into Court. This attitude of the appellant is entirely untenable. It cannot disregard the order of the Court on such flimsy grounds. Its responsibility ends when it deposits the money in the Court in pursuance of its order. The Court below made the position clear beyond any doubt. But, notwithstanding the above clarification made by the Court below, the appellant was dissatisfied and brought the matter in appeal to this Court, which of course it had the right to do, but which, in my opinion, involved the Bank into unnecessary litigation and expenses. As a public body it was its duty to obey the order of the Court, because on obedience of such an order the Bunk is absolved from all liability in respect of the deposit in question.
22. In my opinion, therefore, the order of the Court below asking the appellant to pay the amount lying in deposit to the credit of Nadir Ali, deceased, to the decree-holder-respondent will amount to a valid discharge and will absolve the appellant from all liability so far as the Bank is concerned in respect of the deposit of Nadir Ali and, the appellant as no right, in the instant case, to ask the decree-holder-respondent to produce a Succession Certificate before paying the money into Court.
23. I would, therefore, affirm the order of the Court below, and, hold, in agreement with it that the notice under Order 21, Rule 63A has rightly been issued against the appellant and the garnishee proceeding is not without jurisdiction; on the other hand, it has been legally started against the appellant.
24. The question whether the deposit with the appellant amounted to a debt within the meaning of Rule 46 of Order 21 so as to attract the provisions of Rule 63A of Order 21 is not necessary to be decided here, firstly, because it was not raised by Mr. Bhattacharya and secondly, because the appellant admitted in para 2 (i) of its objections filed on 29-8-1951, that the deposit in question was a debt due by it to Nadir Ali deceased. Never, therefore, there was any dispute about the amount in deposit being a debt within the meaning of Rule 46 of Order 21. The Court below, however, had its own doubts on this question, but it is unnecessary to express any opinion, when this question does not arise as to whether the observation of the Court below on this question is correct or not.
25. The appeal was argued, and, it has been decided, on the footing that the deposit in question with the appellant was a debt attachable under Rule 46 of Order 21 of the Code. Mr. Bhattaeharya no doubt challenged the fact of attachment under Rule 46 of Order 21, but, the gravamen of his complaint was the alleged non-observance of the first part of Clause (2) of Rule 46 of Order 21, and, the sheet-anchor of his argument was the Bench decision of this Court in AIR 1947 Pat 385. All the objections raised by Mr. Bhattaeharya have been considered, and, having been found to be unsubstantial, rejected, and, therefore, the appeal must fail.
26. With these observations, I would dismiss the appeal with costs.