Attachment of amounts payable by garnishee to judgment debtor.

This is an appeal by the petitioner decree-holder against the order of the learned Subordinate Judge, Ootacamund in an execution application under Order, 21, rule 46, Civil Procedure Code. The facts are simple, and are as follows:

Originally the appellant (decree-holder) prayed to the Court below for the issue of a prohibitory order in respect of certain amounts payable by the Garrison Engineer, Wellington to the respondent (judgment-debtor), apparently relating to certain contracts for the Army executed by the judgment-debtor It is not in dispute before me that this application under Order 21, rule 46, Civil Procedure Code, was perfectly maintainable and in order, and that it related to the sums payable by the Garrison Engineer to the judgment-debtor up to the date of the application. As will be clear from a glance at Order 21, rule 46, Civil Procedure Code, that rule applies to attachment of certain kinds of property not in possession of the judgment-debtor, including a debt not secured by a negotiable instrument (rule 46 (a)) and other movable property (rule 46 (c)) not in the possession of the judgment-debtor. The present application was clearly under rule 46 (c), as it related to cash payable to the judgment-debtor by the Garrison Engineer. I further agree with the contention of the learned counsel for the appellant (Mr. Alwares) that the application would be equally tenable under rule 46 (a), as this is a case of a debt due by the Army Authorities to the judgment-debtor not secured by the Negotiable Instruments Act. On 8th April, 1958, the Garrison Engineer wrote a letter to the Subordinate Judge, Ootacamund, in respect of his prohibitory order, informing the Court that an amount of Rs. 7,237-75 had been withheld in response to the order that the balance payable, if any, was so far unascertained, and that the military authorities were therefore unable to state that any further specific balance was payable to the judgment-debtor. There is another letter, dated 16th May, 1958, from the Garrison Engineer, in similar terms, but also intimating the Court that

“ all amounts that become due to the contractor are being kept in deposit (in suspense account), and it has been ensured that no payment is made to Sri J. Hiriya Gowder (judgment-debtor).”

Now, what seems to have happened after this is that the Court, without taking evidence and without any further enquiry, merely confirmed the prohibitory order issued, in respect of the sum of Rs. 7,237-75 alone. The decree-holder (appellant) was naturally aggrieved by this, as, in his view, nearly Rs. 20,000 was due to the judgment-debtor on the date of the attachment. He filed a fresh application under Order 21, rule 46, Civil Procedure Code, praying for a fresh attachment of bill amounts, deposit amounts, etc., totalling to nearly Rs. 20,000. This application was resisted by the judgment-debtor on several grounds, such as the ground that the decree was barred by limitation, and the ground that it was satisfied by private payments between the parties. These grounds were negatived on the merits. But the Court below held, upon the point of maintainability, that no such petition could lie for any amount exceeding the amount of Rs. 7,237-75 reported as the ascertained amount by the Garrison Engineer. The Court consequently dismissed the application as not maintainable.

I find it difficult to follow the reasoning upon which the order of the learned Subordinate Judge is based. Even taking it that the first prohibitory order was enforced up to the extent of Rs. 7,237 odd alone, I find nothing in the processual law to prevent a party situated like the present appellant from applying for a fresh prohibitory order with regard to any balance of monies still payable by the Army Authorities to the judgment-debtor. Again, it is not as if any enquiry or evidence had established that, on the date of the application by the decree-holder, no amount greater than Rs. 7,237 odd was payable to the j