1. This is a defendant's appeal in a suit brought by the plaintiff for a declaration that an amount of Rs. 1,000 said to be in deposit with him is not liable to be attached and sold by auction in execution of the decree obtained by Ikramullah against Habibullah. The facts of the case have been stated at length by the Courts below but they may be recapitulated. It appears that on 14th November 1922 one Habibullah sold a house to Rahim Bux, the plaintiff-respondent, for Rs. 2000 out of which he left the major portion of the sale consideration in the hands of the vendee for payment of various creditors. One of these creditors was Ikramullah, the present appellant, and a sum of Rs. 1,000 was left in the hands of Rahim Bux to pay Ikramullah. Rahim Bux did not pay this amount to Ikramullah with the result that Ikramullah brought a suit against Habibullah, obtained a decree and attached the house in question. Rahim Bux intervened and objected in the execution department that he was the owner of the house by virtue of the sale deed dated 14th November 1922 and the execution Court released the house from attachment. Certain proceedings were taken by Ikramullah and on that point the facts can be gleaned from the plaint alone inasmuch as I have not been able to gather them from the Learned Counsel appearing for the parties. It appears that after the house wag released from attachment Ikramullah took proceedings under Order 21, Rule 131, Civil P.C. t asking the Court to issue a notice to Rahim Bux to show cause why he should not pay a sum of Rs. 1,000 which was alleged to be due from Rahim Bux to Habibullah. Notice was issued to Rahim Bux and Rahim Bux disputed his liability as a garnishee on the ground that he had already paid Rs. 1,000 left with him for payment to Ikramullah, not to Ikramullah but to Habibullah himself at the latter's desire. The execution Court, as appears from the plaint, summarily rejected the objections but did not pass a proper order under Order 21, Rule 133, Civil P.C. The Courts below are not familiar with the procedure enjoined in Order 21, Rule 131 and the subsequent rules.
2. When the Court below rejected the objections of Rahim Bux it should have then passed a proper order under Order 21, Rule 131 to the effect that the garnishee should comply with the terms of the notice issued under Order 21, Rule 131 and on the passing of such an order, execution could have issued against Rahim Bux as though such an order were a decree against him. It also appears that Ikramullah did not insist upon a proper order being passed against Rahim Bux and did not proceed in the way in which garnishee orders are executed but instead of that he proceeded to attach the right and interest of Habibullah in respect of Rs. 1,000 in the hands of Rahim Bux to which objections were taken and it was stated that this sum is not liable to be attached and sold in execution of Ikramullah's decree against Habibullah, but the objections of Rahim Bux, as I can gather from the plaint, were disallowed and 26th July 1929 was fixed for sale. Rahim Bux therefore brought the present suit on 18th July 1929 for a declaration which I have mentioned earlier with the allegation that the Rs. 1,000 that were left with him for payment to Ikramullah had already been paid to Habibullah at the latter's request. The defence was that Rahim Bux had not paid any part of the sum of Rs. 1,000 to Habibullah and that therefore no cause of action accrued to the plaintiff. The Courts below have come to the conclusion upon the evidence in the case that the sum of Rs. 1,000 was paid back to Habibullah by Rahim Bux because Habibullah required the amount in connection with a criminal case which was going on against his son. This is a finding of fact and cannot be challenged is second appeal. Learned Counsel on behalf of the appellant has however taken certain points of law and the first ground that has been taken by him is that
the appellant being the auction-purchaser of a debt held by a competent Court to be due by the respondent as garnishee, and the latter not having objected to or appealed against the order, the suit was barred by the principle of res judicata.
3. This plea has been developed before me by a statement that a garnishee order was passed against Rahim Bux and no appeal having been preferred against that order a suit of the present nature is not maintainable. As I stated before no garnishee order was passed against Rahim Bux, all that took place was that his objections were disallowed. The order disallowing the objections has not been brought to my notice and it is impossible under the circumstances of the case to hold that the present suit is barred by the principle of res judicata. The present suit, as I stated before, has arisen by reason of the fact that Ikramullah proceeded to attach the vendor's lien in the purchase money on the assumption that it has not been paid to the vendor and in connection with this matter a declaratory suit is obviously maintain, able.
4. On the question whether Rahim Bux paid Rs. 1,000 to Habibullah, the Courts below have come to the conclusion that this sum had been paid but they have arrived at this conclusion upon the oral evidence in the case. A plea therefore has been taken before me that oral evidence was inadmissible inasmuch as the terms of the sale deed having been reduced to writing, oral evidence is inadmissible under Section 92, Evidence Act, and a valid discharge could have been obtained only by obtaining a document in writing. This plea is based on a misconception. Habibullah had an actionable claim against Rahim Bux if the latter did not pay the sum of Rs. 1,000 either to Ikramullah or to Habibullah, but if Rahim Bux paid the amount to Habibullah and Habibullah does not deny such a payment it is not within the competence of Rahim Bux to object to the same. There is no privity of contract between Rahim Bux and Ikramullah and Ikramullah cannot fight the battles of Habibullah when the latter does not enter into the arena against Rahim Bux. The third plea is to the effect that the appellant had a charge on the property sold for the unpaid purchase money in his favour, and this could not be extinguished without a registered deed and proper notice to the appellant. There is no force in this plea inasmuch as the appellant Ikramullah had no charge upon the house and there was no privity of contract between him and Rahim Bux. No charge was created in his favour and therefore there is no question of the extinguishment of a charge without a registered deed. Finally, it was contended before me that an issue should be remitted to the Court below on the question of res judicata by elucidating certain facts in connexion with the garnishee proceedings. This plea was neither taken in the Court of first instance nor in the lower appellate Court and I am not prepared to allow the appellant to take the plea of res judicata in second appeal and then to ask that in order to determine the same, certain facts should be investigated. There is no force in this appeal and I dismiss it with costs.