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Kazim Jawaz Jung Vs. Mir Mohamad Ali Jaferi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 457 of 1965
Judge
Reported inAIR1972AP70
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 46(1)
AppellantKazim Jawaz Jung
RespondentMir Mohamad Ali Jaferi and anr.
Appellant AdvocateM. Sadasivarao and ;M. Rama Mohanrao, Advs.
Respondent AdvocateS. Suryaprakasam, Adv.
Excerpt:
.....of judgment debtor) directed to deposit in court amount payable to judgment debtor as required by decree holder - appellant disputed his liability with regard to amount due to judgment debtor - appellant contended final decree with regard to liability amount has not been passed yet - impugned amount becomes payable only when judgment debtor allots land to appellant - appellant not liable to pay any amount before allotment of land by judgment debtor - held, where judgment debtor himself not entitled to recover amount from appellant then decree holder has no right to recover amount from appellant. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language..........civil court, hyderabad directing him to deposit a sum of rs. 6953-81 into court by 16-9-1965. the decree-holder in o. s. no. 50/61 levied execution against his judgment-debtor for recovery of money due under the decree. in order to realise the decree amount, the decree-holder obtained a prohibitory order restraining the judgment-debtor's garnishee from paying the amount due to the judgment-debtor. though the garnishee was absent in the first instance, he was finally permitted to file an affidavit in which we disputed his liability to the judgment-debtor. but on a consideration of the pleas advanced by the garnishee, the court below held against him and directed him to produce the amount into court as required by the decree-holder. aggrieved by the said order, the garnishee filed the.....
Judgment:

1. This appeal is filed by a garnishee against an order passed by the learned Fourth Additional Judge, City, Civil Court, Hyderabad directing him to deposit a sum of Rs. 6953-81 into court by 16-9-1965. The decree-holder in O. S. No. 50/61 levied execution against his judgment-debtor for recovery of money due under the decree. In order to realise the decree amount, the decree-holder obtained a prohibitory order restraining the judgment-debtor's garnishee from paying the amount due to the judgment-debtor. Though the garnishee was absent in the first instance, he was finally permitted to file an affidavit in which we disputed his liability to the judgment-debtor. But on a consideration of the pleas advanced by the garnishee, the court below held against him and directed him to produce the amount into court as required by the decree-holder. Aggrieved by the said order, the garnishee filed the above appeal.

2. The circumstances under which the garnishee is sought to be made liable are as follows:--- The judgment-debtor owned a share in the Estate of one Nawab Jurshid Jahi and a suit O. S. 14/58 is pending in the High Court of Andhra Pradesh for partition of the paigah among all the heirs. The suit ended in a compromise preliminary decree date 8-6-1963 and it is stated before me that a final decree has not yet been passed. Pending the final decree proceedings, the judgment-debtor sold his undivided interest in favour of two persons one of whom is the appellant herein, namely Nawab Kazim Nawaz Jung under a registered sale deed dated 22-1-1964. A sum of Rs. 11,900/- was paid in cash before the Sub Registrar at the time of the registration. So far as the balance of Rs. 35,700/- is concerned, it is provided as follows in para 16(a) of the sale deed.

'In consideration of the payment of Rs. 47,600/- out of which Rs. 11,900/- are paid by means of cash before the sub-Registrar on 22-11-1964 at the time of registration the receipt of which is here by acknowledged by the vendor and the balance of Rs. 35,700/- to be paid after settlement of the dispute in respect of the alienation and the share sold hereby is allotted to the vendee without any trouble or complication, by a post dated cheque .................................................'

In view of this clause contained in the sale deed, it is contended by the garnishee-purchaser, that the balance of sale price is not unconditional and immediately payable to the judgment debtor and that the question of payment to the judgment debtor would arise only on a future contingency, namely, that the vendor should be allotted all the properties which are agreed to be sold and all the disputes about the alienations effected by the vendor should also be settled. On the other hand,. the contention of the decree-holder is that there was another clause in the sale deed according to which the purchaser (garnishee) is bound to pay the creditors of the vendor. The relevant clause is as follows:----

'16 (e). If any creditor of the vendor seeks to enforce his claim against the vendee, the vendee is entitled to deduct the sum of the balance of the sale consideration and pay the same to the creditor or deduct the same from the post dated cheque provided the creditor enforced his claim before payment of such balance.'

The court below relying mainly upon this clause, held that whatever may be the effect of the earlier clause making the payment of the balance of consideration depending upon the final settlement of disputes and the allotment of property to the vendor, the purchaser is bound to pay the debt due to the judgment debtor.

3. Hence the main question for consideration is whether the purchaser (Garnishee) can be directed to pay the money to the vendor's (judgment-debtor's) decree-holder. Under Order 21, Rule 46, Civil P. C. attachment is made in the case of a debt not secured by a negotiable instrument by an order prohibiting the creditor from recovering the debt and the debtor from making payment until further orders of the court. In the case of other moveable property attachment is made by issuing an order prohibiting the person in possession of the same from giving it over to the judgment-debtor. This is not a case where tangible movable property belong to the judgment-debtor was kept in the custody of the garnishee. Hence the only clause applicable is C1. (a) of R. 46 (1) of O. 21, which relates to a simple debt. Under Order 21, Rule 46-A, Civil P. C. (Andhra Pradesh and Madras amendment) the court in such a case shall issue a notice to the person liable to pay the debt to the judgment debtor to show cause why he should not pay the debt to the decree-holder. Under Rule 46-B if the said person who is called a garnishee does not appear or does not dispute the liability, the court may direct him to deposit into court so much of the amount as may be sufficient to satisfy the decree etc. Under Rule 46-C the court has got the power to decide the question if the garnishee disputes his liability and the court, after deciding that the garnishee is liable, may direct him to deposit the amount into court him to deposit the amount into court for the satisfaction of the decree. The learned consent into court for the satisfaction of the decree. The learned counsel for the appellant placed reliance on a decision of this court in C. V. Raghavayya v. C. T. Distributors, (AIR 1958 AP 31) in which it was held that if an amount is kept in deposit by a judgment debtor with a third party who has a claim upon the said amount, the judgment-debtor's decree-holder is not entitled to proceed against the said amount until it was determined that such third person has no claim upon the said amount,. It was further observed that the decree-holder cannot by means of attachment stand in a better position as regards the garnishee than the judgment-debtor and obtain from him a relief which the judgment-debtor himself cannot obtain. In Gajraj v. Hukamchand, (AIR 1939 Bom 90) it was held that money in the hands of a garnishee which is payable to the judgment-debtor only in certain contingencies cannot be recovered by the decree-holder. In Shanti Prasad v. Director of Enforcement, : [1963]2SCR297 a contingent debt is explained as a sum of money payable only when a contingency happens or does not happen in future. It is not the same thing as a present debt which is merely payable in future. The principle underlying the foregoing cases appears t be that a decree-holder can proceed against a garnishee only in a case where the judgment-debtor had the present right to recover the money for himself from his judgment-debtor (garnishee). But if the money is payable to the judgment-debtor only on a certain contingency, the decree-holder will be subject to the same disability as his judgment-debtor and has to wait till the happening of the said contingency. Applying these principles to the facts of the present case, it is clearly mentioned in paragraph 16 (a) of the sale deed that the balance of the sale price will be paid to the vendor (judgment-debtor) only on the settlement of the disputes as regards the alienation's, etc,. and on the final allotment of the properties to the judgment debtor in the final decree. Until the said event takes place, the judgment-debtor himself cannot demand the unpaid price from the purchaser. It follows, therefore, that the decree-holder who is merely seeking to enforce the right of his judgment-debtor is equally debarred from claiming the money from the garnishee at this stage .

4. It is submitted by the decree-holder that the latter clause in the sale deed authorising the purchaser to pay the vendor's creditors overrides the earlier clause laying down the conditions under which the unpaid money was retained in the hands of the purchaser. The court below no doubt accepted this construction but I am unable to agree that that is the proper interpretation. If the latter clause providing for payment of the creditor's vendor is given effect to, it would be practically nullifying the effect of the earlier clause in para. 16 (a). The proper view to take is to give effect to both the clauses and if that is done, the second clause will come into operation only after the disputes between the vendor and the vendee are settled, in which case it may be said that the money due to the judgment-debtor becomes payable to the judgment-debtor. It is not suggested by the decree-holder in the court below that the disputes between the vendor and the purchaser were settled. In fact it is stated by the appellant's learned counsel that a final decree has not yet been passed in the suit pending which the judgment-debtor sold that property. I therefore disagree with the view taken by the court below and set aside the order directing the appellant-garnishee to deposit the amount into court.

5. It will be of course, open to the decree-holder to proceed against the garnishee at the appropriate time in future when the disputes between the judgment-debtor and the purchaser are finally settled and the sale amount becomes payable to the judgment-debtor.

6. The appeal is accordingly allowed, but there will be no order as to costs.

7. Appeal allowed.


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