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1. I have had the advantage in this case of perusing the judgment about to be delivered by Beasley, J. It sums up the results arrived at after a long discussion between him, Odgers and myself and it may be taken to be the judgment of the Court. I only add a few words because I feel it is incumbent upon me to do so as for eight years 1 was in charge of the insolvency Jurisdiction of the Original Side of the High Court. The procedure which was prohibited by the judgment of the Calcutta High Court in Jnanendra Bala Debi v. The Official Assignee of Calcutta was that persons alleged to be indebted to the Bankrupt estate--known in our Court for some reason, I never quite understood, as "garnishees"--should be examined, which of course in effect means cross-examined, by the Official Assignee under the powers of Section 36 and that statements made by them not amounting to a definite admission of indebtedness to the estate should be used under Section 7 to ask the Court then and there to pass a decree against the garnishees on the ground that though they are not tantamount to direct admissions they were available as evidence to show that their answer to the claim put forward by the Official Assignee was untrue. That procedure, in my opinion, was not only rightly denounced by the Calcutta High Court but is definitely prohibited by the Statute as amended. That is sufficient to uphold the judgment of Waller, J., and to dismiss this appeal.

3. I may add in conclusion that, now that our attention has been drawn to it, I think the present form of what is called a garnishee summons is capable of being construed as throwing the burden of proof not on the Official Assignee but on the so-called garnishee. In my experience, the Official Assignee never sought to take that attitude and always proceeded to prove his case as if he were a plaintiff. Though it may not be a practical difficulty I think it is proper that the form of summons should be amended so as to show that the burden of proof does rest on the Official Assignee. This is a matter for the Rules Committee and one of no real difficulty, the only point of importance being to omit the words which call upon the garnishee to show cause why he should not be adjudged to be a debtor to the estate and substitute some other form of words which will make it clear that he is only called upon to meet a claim, the burden of proving which lies upon the Official Assignee.

Odgers, J.

4. In this case, I had prepared a separate judgment, but 1 agree so entirely with the judgment about to be delivered by my brother Beasley, J., that I do not feel I should be justified in taking up time by trying to express what he has so clearly enunciated. I agree that the appeal should be dismissed.

Beasley, J.

5. This appeal raises a question of the greatest importance in insolvency. It is an appeal from the order of Waller, J., dated the 13th February, 1928. One E. Narasimha Mudaliar is alleged by the Official Assignee of Madras to owe the estate of an insolvent A. Swaminatha Mudaliar Rs. 1,445-2-0. A summons was taken out by the Official Assignee in order to obtain that money from Narasimha Mudaliar. This summons has come to be known on the Insolvency Side of this High Court as a garnishee summons and the person summoned is known as the garnishee. When the matter came before Waller, J., who was then sitting in insolvency, the garnishee admitted that he owed the insolvent Rs. 173 and Waller, J., made an order for payment of that amount, but as regards the disputed balance, as the garnishee did not agree to that matter being tried out on that summons, Waller, J., ordered it to be tried elsewhere.

6. The question which arises in this appeal is whether the Insolvency Court has jurisdiction to make an order for payment by a stranger to the insolvency of money in respect of which that person disputes his indebtedness to the insolvent. Waller, J., in his judgment stated that the claim before him was very clearly a case under Section 36 of the Presidency Towns Insolvency Act and I think that it is obvious that it was so from the wording of the summons. Before the Presidency Towns insolvency (Amendment) Act of 1027 the Court could summon before it any person who was supposed to be indebted to the insolvent and examine that person and if on examination the Court was satisfied that he was indebted to the insolvent the Court could forthwith make an order upon him for the payment of the amount in which he was found to be indebted. But the Presidency Towns Insolvency (Amendment) Act of 1927 has brought about an alteration and sub-Sections (4) and (5) of Section 36 of the Presidency Towns Insolvency Act of 1909 have been amended by the substitution of the following words "if on his examination any such person admits" for the words "if on the examination of any such person the Court is satisfied." The result of this amendment is that where after an examination a person admits that he owes a sum of money to the insolvent, the Court can then and there order him to repay that amount to the Official Assignee, whereas before the amendment the Court could make that order even where there had been no such admission. In the case before us the garnishee admitted that he owed a portion of the amount claimed by the Official Assignee but disputed that he owed the balance. Waller, J., was, therefore, perfectly right in making an order upon him for the payment of the admitted amount and in declining to try the question of the disputed balance. The amendment to Section 36 makes it quite clear that the Court has no jurisdiction whatever on a summons under that section to make orders for payment of debts disputed by garnishees. This disposes of the appeal but we are asked to decide another important question arising out of this appeal as it is argued on behalf of the Official Assignee that Section 7 of the Presidency Towns Insolvency Act of 1909 gives the Insolvency Court jurisdiction to try money claims made by the Official Assignee even where those claims are disputed by garnishees.