052-NLR-NLR-V-36-JAYAWEERA-v.-ABDUL-CADER.pdf
Jayaxoeera v. Abdul Coder.
269
1934
Present: Dalton J.
JAYAWEERA v. ABDUL CADER.
151—C. R. Colombo, 83,962.
Garnishee order—Denial of debt—Power of Court to JjpId inquiry—CivilProcedure Code, s. 230.
Where, upon the issue of a garnishee order under section 229 of theCivil Procedure Code, the garnishee disputes the debt, the Court has nopower to hold an inquiry in order to determine whether the debt is due.
270
DALTON J.—Jayaweera v. Abdul Cader.
^ PPEAL from an order of the Commissioner of Requests, Colombo.H. V. Perera, for parties noticed, -appellants.
Mackenzie Pereira, for plaintiff, respondent.May 24, 1934. Dalton J.—
Cur. adv. vulz.
The plaintiff obtained judgment against the defendant company for thesum of Rs. 128.86 and costs. On February 4, 1933, he applied forexecution of the decree setting out that Rs. 90.20 had been paid onaccount of the claim, with costs to date, but that a balance of Rs. 38.66still remained due. This application was allowed. The Deputy Fiscalthereupon on February 6 forwarded a written notice signed by him to sixpersons, whom I will call hereafter the garnishees, purporting to act undersection 229 of the Civil Procedure Code, “ prohibiting them from payingthe judgment-debtor and the judgment-debtor from receiving any moneydue to the ‘ Ceylon Morning Leader ’ as contributories.. There is no recordof any proceeding or affidavit by the plaintiff between February 4 andFebruary 6, or at any date prior to the issue of this prohibitory noticealleging the six persons mentioned were in any way indebted to thedefendant company. How the Deputy Fiscal came to act as he didfurther is not explained; no particulars of any alleged debt seized areset out in the prohibitory notice, as required by law (see section 229 ofthe Civil Procedure Code, and form No. 44), nor in fact is it stated thatany alleged debt is due from the six persons to the defendant company.The most that the notice can be said to do is to prohibit the payment andreceipt of any money that may be due. I gather the plaintiff was reallyat that stage trying to ascertain if any sum was due from the garnisheesto the defendant company. That is not a purpose for which garnisheeproceedings are provided, and the action of the plaintiff and of the DeputyFiscal seems to have been quite irregular.
The next step by the plaintiff was a motion on February 14, 1933, againnot supported by any affidavit, asking the Court to issue notices on thegarnishees “ to show cause, if any, why the money seized in their handsby the prohibitory notice ” of February 6 should not be brought intoCourt. It was allowed by the Commissioner, but wrongly, in my opinion,as there was nothing to support it. The notices were duly served, and thejournal entries show that affidavits were filed by three of the garnishees,two denying any sum was due by them to the defendant company, andthe third alleging that whilst nothing was due by him to the company,the company was indebted to him for money advanced. The othergarnishees seem to have taken no action except to prepare for the inquirywhich was held Jay the Commissioner on March 23, 1933. Then for thefirst time are given particulars of the alleged debts due by the garnisheesto the defendant company. Plaintiff’s counsel in opening the inquirystates that Rs. 1,055 is still due by each of the six garnishees to thecompany. Even if there was any foundation for that statement, he does
DALTON J.—Jayaweera v. Abdul Coder
211
not, however, explain why he takes these proceedings against six persons,each in respect of the sum of Rs. 1,055, in respect of a claim by plaintiffto be paid the sum of Rs. 38.66 only. The Commissioner then proceedsto determine whether this allegation is true, and after lengthy evidenceand a very long judgment holds that four of the garnishees are indebtedto the company in the sum of Rs. 1,000 each, one in the sum of Rs. 175,and one is not indebted to the company at all.
The garnishees appeal against this order. The first ground argued wasthat the Commissioner had no jurisdiction to hold any inquiry at all, underthe provisions of the Civil Procedure Code, once the existence of the debtwas disputed. He purported to hold the inquiry as to whether the debtswere due or not, following what he held to be the decision in SupramaniamChetty v. Cave & Co.1
Section 230 of the Code states what the Court is to do if the garnisheedoes not dispute the debt due or claimed to be due from him, but it issilent as to what is to be done if the debt is disputed. There is no provisionin the Code equivalent, for instance, to Order XLV., Rule 4 of the EnglishRules providing for the trial of the liability of the garnishee. There are,however, previous decisions of this Court, which have decided thisquestion, so far as the provisions of the Code are concerned. In GurusamyPillay v. Palaniapperv in the course of his judgment allowing that appeal,Wood Renton- J. states his opinion of the extent of the provisions ofsection 230 as follows : —
It is clear that the object of section 229 of the Civil Procedure Codeis to facilitate the expeditious recovery of the property of ajudgment-debtor. Among the property which may be sorecovered the section, taken in conjunction with section 230,provides for the inclusion of debts due to the judgment-debtoras to whose existence there is no dispute. It appears to me onprinciple that these sections should be confined to cases inwhich the debtor would have had no defence, if he had been suedby his own creditor, the judgment-debtor.
Two years later in Usoof v. Sinna Umma3 Hutchinson C.J. alsoconsidered the construction of section 230. In that case one of thegarnishees said the debt had been paid and that he had a receipt. TheCommissioner ordered him to produce the receipt, held an inquiry,found the receipt was a forgery and the debt was still due, and orderedthe garnishee to pay it. On appeal it was .held inter alia that thisproceeding was wrong, that once the debt was disputed, no order could bemade under the provisions of section 230.
In the case relied upon by the Commissioner who held this inquiry,earlier decisions are referred to althougK not by-name. Jayawardene A.J.
N. L. R. 25.3 3 A. C. R. 15.
3 3 Weerekoon’s Reports 46.
272
DALTON J.—Jaya4eera] v. Abdul Cader.
states it has been held in varioufi <ja§,es that where a debtor disputes thedebt to the judgment-debtor, the "Court I has to stay its hand. A perusalof his judgment does not satisfy me that he differed in any way from thoseearlier decisions. In the case before him, however, he seems to have heldthere was no satisfactory proof the debtor did dispute the existence of thedebt, and he accordingly directed that the case go back so that theCommissioner might follow the procedure under section 230 on the footingthat the debt was not disputed. He gave the garnishee, however, anotheropportunity of disputing the claim. There are one or two sentences in thejudgment which are not quite clear, but I do not think it goes further thanthis, to lay down that the Court must be satisfied before holding its handthat there is a bona fide dispute as to the existence of the debt or as to theliability of the debtor to pay it over to the judgment-debtor. If eitherof these conditions exists, then there is nothing in section 230 whichauthorizes the Court to inquire into the matter.
In addition to the affidavits from the garnishees to which I have referred,the proceedings show that the remaining garnishees took up the positionthat no money was due by them to the judgment-debtor. This theyshould have supported by affidavit, but there seems to have been nodoubt as to the bona fide nature of the position they took up. In thecircumstances therefore, following the authorities to which I have referred,since it was apparent that there was a bona fide dispute as to the existenceof the debts, it had no power tp hold any inquiry as it did.
In this event it is not necessary for me to consider the further groundof appeal, although I think respondent on this ground also would havesome difficulty in upholding the decision of the Commissioner. Assumingthat section 230 gives the Court power to hold an inquiry as to theexistence of the debt, where its existence is disputed by the garnishee, itwas urged that the amount of the alleged debts sought to be attached,Rs. 1,055 in the case of each of the six garnishees, is beyond thejurisdiction of the Court of Requests, as defined by section 77 o(fi theCourts Ordinance, 1899. I might point out that in England, it seems,that a County Court has no power to deal with such a matter where/theamount of the debt is beyond its ordinary jurisdiction. The High Courtalso has power to transfer to the County Court any such matter, wherethe amount of the debt sought to be attached, or for which execution issought, does not exceed £100 (9 & 10 Geo. V. c. 73).
For the reasons I have given I would allow this appeal. The order ofthe Commissioner must be set aside and the application of the plaintiffmust be dismissed. The garnishees are entitled to their costs here andbelow.
Appeal allowed.