076-NLR-NLR-V-10-GURUSAMYPILLAI-V.-PALANIAPPA-KANGANY-et-al.pdf
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1907*Present: Mr. Justice Wood Renton.
December 20
GURUSAMYPILLAI t>. PALANIAPPA KANG A NY et al.
Ex parte J. C. Wiggin, Appellant.
C. R., Hatton, 6,358.
j
Wage* due tckangany—Attachment—Prohibitory notice—Debtdue to
estate—Set-off—Garnishee order—Rights of garnishor—CwiX Pro-cedure Code, ss. 229 (a) and 280.
Held by Wood Renton J.—That the / wageB earned by a kanganywhich, by the custom of the estate, are being applied in payment ofa debt due by the kangany to the estate, cannot be attached inexecution at the instance of a third party.
A garnishee order does not operate as a transfer of the debt whichwill make rhe garnishor creditor of the garnishee, but merely createsa lien in favour of the garnishor, which ig. subject to all prior equit-able rights.
T
HE plaintiff, having obtained judgment against the defendantsfor a sum of Rs. 81.82, issued a prohibitory notice under
sub-section (d) of section 229 of the Civil Procedure Code, on theappellant, the Superintendent of the estate, on which the firstdefendant was employed, prohibiting him from paying to thfirst defendant the head money due to him. The appellanthereupon moved to have the said notice withdrawn, on theground that the first defendant was indebted tg^the estate, andthat the money due to the first defendant was applied in dischargeof the said debt. The motion was disallowed, and the Superin-tendent appealed.
A. St. V. Jayewardene, for the appellant.
Wadsworth, for the plaintiff, respondent.
V
tCur. adv. vult.
c
December 20, 1907. Wood Renton J.—
After careful consideration 1 have come to the conclusion thatMr. A. St. Y. Jayewardene's argument for the appellant shouldprevail. The present case is clearly one of great interest andimportance to the planting community jmd. their kanganies/ and-‘indeed to the pKblic as a whole. I propose, in the first pl$ce, to stateshortly the material facts, and then to consider the law applicableto them on grounds of principle and in the light of such authoritiesas*I have been able to find which have any hearing on tho issue-
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It appears that the appellant, Mr. Wiggin, the Superintendent of 1907vQueenwood estate, Lindula, was served with a prohibitory notice D*cember 20'under section 299 (a) of the Civil Procedure Code at the instance Woodof a judgment-creditor of Palaniappa, a kangany in his employ, Rent°kJ.restraining him from making any payment to Palaniappa of moneydue to him by the estate by way of ** pence money.*’ On the day ;fixed in the prohibitory notice the appellant appeared under section280 of the Code, and although the meagre journal entries throwlittle light on what actually transpired at the hearing, it' would seem), that he set up in substance the defence that Palaniappa was himselfin debt- to the estate to a much larger sum than any amount due bythe estate to him at the date of the prohibitory notice, and that, bythe custom of the estate, he was entitled to appropriate the wagesthen due to Palaniappa in part liquidation of that indebtedness.
In spite of this plea the Commissioner of Bequests has made an order,under section 230 of the Civil Procedure Code attaching the wageswhich ex conces8i8 would have been due to the kangany at the dateof the prohibitory notice, but for the Superintendent's claim to aoustomary set-off. In my opinion the order appealed against is badboth on principle and on authority. It is clear that the object ofsection 229 of the Civil Procedure Code is to facilitate the expeditiousrecovery of the property of a judgment-debtor. Among the propertywhich may be so recovered, the section, taken in conjunction with■section 230, provides for the inclusion of debts due to the judgment-debtor, as to whose existence there is no dispute. It appears to me$n principle .that .these sections should be confined to cases in whichjthe debtor would have had no defence, if he hr_d been sued by hisown creditor, the judgment-debtor, and that where, as here, the-debtor oi the judgment-debtor, could set up a claim of set-off againsthis own immediate creditor, he is not subject to the summaryprovisions in sections 229 and 230 of the Civil Procedure Code. Inthe present case the appellant alleges that by the custom of theestate, which would be binding contractually on his kangany, therewas no debt due by the estate to the kangany at the date of theprohibitory notice. I think the appellant is equally entitled onprinciple to rely on that, equitable defence when he is summoned bya prohibitory notice under section 229 of the Code bofore a Court ofBequests. I have, so far, considered the question on grounds ofprinciple alone. I have been unable to find any local decision whichaffords me any real help in regard to the construction of .the sectionsabove mentioned, but I think that the English cases which have been.decided under the Buies of Court applicable to garnishee oV^ersfurnish strong corroboration of the soundness of the conclusion at ,)which I have arrived. It was iaid down as obite'r dictum by LordJustice James, in the case of Ex parte Joselyne,l that the effect of an
i (1878) 8 Ch. D. 327-330.
( m )1907.
December 20.
WoodtlBNTON J.
order of attachment is to transfer the debt attached absolutely from.the judgment-debtor to the judgment-creditor. In all the latercases, however, this dictum has been explained and distinguished, tosuch an extent that it may fairly be said to haVe been disregarded.In the case 6f Ex parte The * Combined^ Weighing and Advertising’Machine Companyfl it wa6 held that a gamjshee order does notoperate as a .transfer of the debt, which will make the garnishorcreditor of the garnishee, and that its effect is merely to create in hisfavour a lien, which will be subject to all prior equitable rights. Inthe case of Badeley v. Consolidated Bank* the Court of Appeal decidedthat, by virtue of a garnishee order, a creditor can only attach suchproperty of the debtor as the debtor himself could deal with properlyand without violation of the rights of others. In connection withthe same point, I may refer to the case of Ex parte Whitehome,9Qeisse v. Taylor,4 and Norton tt. Yates.6 It is quite true that all thosecases deal with circumstances in which the rights of .third parties'were involved, but I think that the principle underlying them isequally applicable to the case of the garnishee himself, and that adebt whose payment into Court can be enforced under the summaryprovisions of the Civil Procedure Code must be a debt of which thejudgment-debtor could, himself have compelled payment if he haddesired to do so. On this last point I refer to the case of Chattertonv. Watney.6 I.t appears to me that the order appealed against shouldnot have been made and I set it aside.
In view of the difficulty and the importance of the present case Ihave thought it right to deal with the facts and the law applicable to>them in detail. ^
The appeal is allowed with costs.
Appeal allowed.
C.w. ,
» (1890) 43 Ch. D. 99. f .4 (19C6) 2 K. B. 658.
* (1688) 88 Ch. D. 238.<* (1906) l K. B. 112.
.* (1886) 82 Ch. D. 612.* (1881) 16 Ch. D. 979-888.
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