Jayaweera V. Abdul Cader

1934 Present: Dalton J.

JAYAWEERA v. ABDUL CADER.

151-C. R. Colombo, 83962.

Garnishee order-Denial of debt-Power of Court to hold inquiry-Civil Procedure Code, s. 230.

Where, upon the issue of a garnishee order under section 229 of the Civil Procedure Code, the garnishee disputes the debt, the Court has no power to hold an inquiry in order to determine whether the debt is due.

APPEAL from an order of the Commissioner of Requests, Colombo.

H. V. Perera, for parties noticed, appellants.

Mackenzie Pereira, for plaintiff, respondent.

Cur. adv. vult.

 May 24, 1934. DALTON J.-

The plaintiff obtained judgment against the defendant company for the sum of Rs. 128.86 and costs. On February 4, 1933, he applied for execution of the decree setting out that Rs. 90.20 had been paid on account of the claim, with costs to date, but that a balance of Rs. 38.66 still remained due. This application was allowed. The Deputy Fiscal thereupon on February 6 forwarded a written notice signed by him to six persons, whom I will call hereafter the garishees, purporting to act under section 229 of the Civil Procedure Code, " prohibiting them from paying the judgment-debtor and the judgment-debtor from receiving any money due to the' Ceylon Morning Leader' as contributories.. There is no record of any proceeding or affidavit by the plaintiff between February 4 and February 6, or at any date prior to the issue of this prohibitory notice alleging the six persons mentioned were in any way indebted to the defendant company. How the Deputy Fiscal came to act as he did further is not explained; no particulars of any alleged debt seized are set out in the prohibitory notice, as required by law (see section 229 of the Civil Procedure Code, and form No. 44), nor in fact is it stated that any 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 and receipt of any money that may be due. I gather the plaintiff was really at that stage trying to ascertain if any sum was due from the garnishees to the defendant company. That is not a purpose for which garnishee proceedings are provided, and the action of the plaintiff and of the Deputy Fiscal seems to have been quite irregular.

The next step by the plaintiff was a motion on February 14, 1933, again not supported by any affidavit, asking the Court to issue notices on the garnishees " to show cause, if any, why the money seized in their hands by the prohibitory notice" of February 6 should not be brought into Court. It was allowed by the Commissioner, but wrongly, in my opinion, as there was nothing to support it. The notices were duly served, and the journal entries show that affidavits were filed by three of the garnishees, two denying any sum was due by them to the defendant company, and the third alleging that whilst nothing was due by him to the company, the company was indebted to him for money advanced. The other garnishees seem to have taken no action except to prepare for the inquiry which was held by the Commissioner on March 23, 1933. Then for the first time are given particulars of the alleged debts due by the ganishees to the defendant company. Plaintiffs counsel in opening the inquiry states that Rs. 1,055 is still due by each of the six ganishees to the company. Even if there was any foundation for that statement, he does

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 plaintiff to be paid the sum of Rs. 38.66 only. The Commissioner then proceeds to determine whether this allegation is true, and after lengthy evidence and a very long judgment holds that four of the garnishees are indebted to 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. T

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