Powers and duties of receiver in garnishee proceedings.

It is indeed surprising, on the established facts, that the lower appellate Court upheld the contentions of defendants 1 and 2 and dismissed the suit, O.S.No.870 of 1964, of the plaintiff who is the appellant in the Second Appeal. As several points are concluded by the findings of the Court below against defendants 1 and 2, the point which arises for decision in the Second Appeal is very narrow and it is sufficient to state the facts which are relevant for the decision of the point arising in the Second Appeal. The properties, in respect of which a charge decree is asked for by the plaintiff, were sold by one Arurmugam (the plaintiff) and his brother to one Mari on 20th August, 1951. On Mari’s death, his wife Kuppakkal and his son Nachimuthu sold the properties purchased by Mari to one Maruda Thevar, the husband of the 1st defendant and father of the 2nd defendant, for a sum of Rs. 15,000. As this Mari did not pay the balance of the purchase price, Arumuga filed the suit, O.S. No. 787 of 1956, against Mari’s son Nachimuthu, the 3rd defendant in the Suit, and obtained a decree for Rs. 1,600 Odd and costs. In execution of this decree obtained against Nachimuthu, (the 3rd defendant in this action) ,Armuga attached the balance of the purchase price due by defendants 1 and 2 to the 3rd defendant Nachimuthu (Mari’s son). Garnishee proceedings under Order 21, rule 46, Civil Procedure Code, were taken and as nothing materialised, the plaintiff first obtained an order for attachment in E.P. R.No. 1233 of 1960 that a sum of Rs. 3,000 in the hands of defendants 1 and 2 out of the sum of Rs, 6,000 alleged to be payable to the 3rd defendant, shall be attached. Immediately thereafter, the plaintiff got himself appointed as Receiver in E.P. No. 982 of 1961 to realise the amount due from defendants 1 and 2 to the 3rd defendant. The plaintiff instituted the present suit, O.S. No. 87 of 1964, on 2nd March, 1961. The suit was resisted by all the defendants on the ground, inter alia, that the entire amount due by defendants 1 and 2 to the 3rd defendant has been paid and nothing was due by them to the 3rd defendant. Defendants 1 and 2 filed one written statement and the 3rd defendant filed his own written statement; all the defendants made common cause and appeared by the same Counsel, their main contention being that the debt due by defendants 1 and 2 had been paid to the 3rd defendant and had been completely discharged. Both the Courts concurrently found that this plea of discharge is false and dishonest. No argument was advanced before me attacking this finding. The result is that so far as defendants 1 and 2 are concerned, they are liable to the 3rd defendant. Sevaral objections were raised about the validity of the attachment proceedings, want of notice, etc., etc., and all those objections were rejected by the trial Court which decreed the plaintiff’s suit as prayed for. On appeal, the lower appellate Court took the view that the present suit by the plaintiff is misconceived, that there was no proper service of notice of attachment of the debt upon defendants 1 and 2 and that the plaintiff is not entitled to maintain the suit. The lower appellate Court took the view that unless there was a valid attachment of the debt in question, the plaintiff, though appointed receiver, would not be entitled to institute the suit. As observed already, the lower appellate Court had no hesitation in accepting the finding of the trial Court that the plea of discharge raised by defendants 1 and 2 was throughly false and dishonest. The result was that the lower appellate Court allowed the appeal and dismissed the plaintiff’s suit on the ground that the plaintiff had misconceived the remedy and that certain provisions of the Code of Civil Procedure, had not been complied with. Hence the present Second Appeal by the defeated plaintiff.

2. Even on the statement of facts, I took the view that on the established facts, it was impossible to sustain the reaso