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Andhra Pradesh High Court
Judges : VENKATESWARA RAO
Nadikatla Anjanna - Appellant
Versus
Bandi Ramakrishna - Respondent
Decided On : 07-17-70
ATTACHMENT OF DEBT - CONTINGENT DEBT - ATTACHMENT BEFORE DEBT BECOMES DUE - VALIDITY - DEBT DUE JOINTLY TO JUDGMENT-DEBTOR AND OTHERS - ATTACHABILITY.
Fact of the Case:
The judgment debtors owed rent to the appellants, who were tenants. The decree-holder applied for attachment of the rent under Order 21, Rule 46, Civil P. C., even before the rent became due. The appellants contended that the attachment was invalid as it was of a contingent debt and that the debt was due jointly to the judgment debtors and others and was therefore not liable for attachment.
Finding of the Court:
The court held that the attachment was not invalid merely because the application for attachment was made before the debt became due, as long as the debt was due by the date of attachment. However, the court also held that the attachment was invalid because the debt was due jointly to the judgment debtors and others.
Issues: 1. Whether an attachment of a debt before it becomes due is valid? 2. Whether a debt due jointly to a judgment-debtor and others is liable for attachment under Order 21, Rule 46, Civil P. C.?
Ratio Decidendi: 1. An attachment of a debt is not invalid merely because the application for attachment was made before the debt became due, as long as the debt was due by the date of attachment. 2. A debt due jointly to a judgment-debtor and others is not liable for attachment under Order 21, Rule 46, Civil P. C.
Final Decision: The order of the court below attaching the rent was reversed and E. P. 188/66 was dismissed.
( 1 ) THIS appeal arises out of proceedings under Order 21, Rule 46 Civil P. C. Garnishees Nos. 1 to 5,8,9,11 and 12 are the appellants before the Court.
( 2 ) IN execution of a decree obtained by him on O. S. 18/64 on the file of the Subordinate Judge, Eeluru, the respondents herein applied in E. P. 188/66 to the Court of the First Additional District Munsif, Tannuku, for attachment under Order 21, Rule 46, Civil P. C. of a 1/5th share of the rent alleged to be due to the judgment-debtors from the appellants and 3 others in respect of certain properties held by them as tenants. Garnishees Nos. 6, 7 and 10 filed counter denying that the are tenants in respect of any lands belonging to the Judgment-debtors. The other garnishees resited the application contending inter alia that they have already paid away whatever was due by them to the judgment-debtors and that there was, therefore, nothing more for being attached pursuant to the decree and that the attachment is, in any view. illegal as the debt due by them did not become payable at the date on which the application for attachment was made and also because a debt, which due jointly to the judgment debtors and others, is not liable for attachment under Order 21, Rule 46, Civil P. C. The executing Court exonerated respondents Nos. 6 7 and 10 in the petition; and having negatived the objections raised by the other respondents (appellants) made the attachment absolute and directed them to deposit was confirmed in appeal by the learned District. Judge, West Godavail. Hence this further appeal
( 3 ) TWO grounds are urged in support of this appeal by Sri Jagannatha Rao, the learned counsel for the appellants to question the validity of the attachment and they are (1) the debt did not become due to the judgment-debtors at the date on which the decree-holder applied for its attachment and the attachment ordered by the executing Court. was, therefore, one of a contingent debt. and (2) the debt being one due both to the judgment-debtors and some other persons is not liable for attachment.
( 4 ) IT is not in dispute that the application for attachment in this case made even before the rent which the appellants owed to the judgment-debtors fell due; though the attachment was actually effected on 24-8-1967 i. e. , nearly 7 months after the debt became due. It is contended for the appellants that the application having been made prior to the date on which the debt became due. the attachment ordered in this case should be deemed to be one in respect of a contingent debt and is, therefore, bad. V. V. Subba Rao v. Mohd. . Hussian Khan, AIR 1964 Andh Pra 395. is relied upon in support of this contention. I am afraid that this decision does not render any assistance to the appellants since all that has been held in that case is that the salary of a private employee cannot be attached in advance or in anticipation its being become due. The learned Judge referred in the course of his judgment to Webb v. Stention, (1883) 111 QBD 518, in which it seems to have been pointed out that "there was no debt owing or accruing at the time when the order was applied for which could be attached under O. 45. R. 2" but a perusal of (1883) 11 QBD 518, itself does not seem to warrant the inference that not only the attachment but also the application for attachment should be made only after the debt becomes due. All that was indicated in that decision also is that three must be an actual debt existing at the time the order of attachment was made. So, what is prohibited from being attached is a contingement devote or a devote which is to become payable in future and not a debt that has already become due. It is the date of attachment and not the date on which the application for attachment was made that is material. If the dept. was due by the date of which the attachment was effected, there cannot be any valid objection against the same simply because the application for its attachment was made
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