[1938] EACA 206

## APPELLATE CIVIL

### BEFORE SIR JOSEPH SHERIDAN, C. J.

## SOHAN LAL (Original decree-holder) AND THAKER DASS (Assignee), Appellants

#### v.

# THE BRITISH EAST AFRICAN PLANTING CO., LTD., Respondents (Original garnishee)

## Civ. App. No. 1 of 1938

Civil Procedure—Garnishee—Trial of issue—Assignment of decree during pendency of execution proceedings—Parties—Practice— Continuance of proceedings or suit—Right to appear—Absence of party—Definition of suit—Civil Procedure Ordinance, secs. 2 (23), 34 and 38—Civil Procedure Rules, O. IX, r. 19, O. XIX, r. 13, O. XX, r. 4, O. XXI, rr. 9 and 12.

Held (4-4-38).-(1) That where a decree has been assigned during the pendency of execution proceedings, the assignee must take the requisite steps to bring himself on the record before he can be heard in the subsequent stages of the proceedings.

(2) That the trial of an issue of the liability of the garnishee is a suit as defined by section 2 (23) of the Civil Procedure Ordinance.

(3) That when on the day fixed for the trial of the issue of the liability of a garnishee, the garnishee appears and the garnishor does not appear, the court cannot decide the issue in favour of the garnishor on the facts already before the court unless it is clear that the garnishee has receded from his contention that he is not liable.

S. the original holder of a degree against one H. having obtained in the Court of the Resident Magistrate, Nairobi, an order garnishee nisi against the respondents, who denied liability to H. after an issue had been framed under O. XX, r. 4, assigned his decree.

The assignee who had not made any application under O. XIX, r. 13, nor under O. XXI, r. 9, in the absence of S. on the day fixed for the trial of the issue sought to appear and contest the issue. The magistrate held that the assignee had no right to appear and decided the issue in favour of the respondents in the judgment following.

**RUDD,** R. M.—On 2-9-37 the judgment-creditor in this case obtained judgment by consent against the judgment-debtor and a decree was made for Sh. 1,463. At 2 p.m. that day he applied for an order garnishee attaching a debt which he alleged to be due to the judgment-debtor from the British East African Planting Co., Ltd.

The Thika Timber Trading Co. had also obtained a decree against the judgment-debtor from the Subordinate Court of the first class at Thika. At 2 p.m. on the same day they applied for a similar order against the British East African Planting Co., Ltd., and Patel's Provision Stores, Thika. Both Courts issued notices to show cause which were both served on the British East African Planting Co., Ltd., through Baron Von Huth. The Thika order was served first by about half-an-hour. When the Nairobi order was served Baron Von Huth refused to accept it as he says he thought it could have

no effect since it was served after the Thika order. On 16-9-37, I declared the order in this case to have been duly served on the British East African Planting Co., Ltd., on 2-9-37. In the meantime, Baron Von Huth had paid Sh. 1,500 which was all that was due to Messrs. Patel's Provision Stores. Before doing so he got in touch with the First Class Magistrate at Thika and asked him if he could pay this money to Patel's Provision Stores, as he had a document signed by the judgment-debtor asking him to pay the money to them. The First Class Magistrate, Thika, said he could do that and he did so. Baron Von Huth did not tell the Thika magistrate of the service of the order of this Court which he thought was not effective. After the money had been paid Baron Von Huth appeared before me in Chambers in response to a letter from me and he then denied liability. A date was fixed for the trial of the issue. Before the hearing date the judgment-creditor assigned his decree to Mr. Burke's client. On the date of the hearing the judgment-creditor did not appear to fight the issue but Mr. Burke did appear to fight it on behalf of the assignee. At this time the only thing that had been done to bring the assignee on the record was that a copy of the assignment was lodged in Court. No application was made by the assignee for an order garnishee or for leave to appear or for continuance of the proceedings in his name. The date of hearing was $19-11-37$ . Subsequently a document dated $13-11-37$ was lodged in Court by which the judgment-creditor and judgmentdebtor purported to waive notice on them as required by O. XIX. r. 13. The first question I have to decide is whether the assignee has taken sufficient steps to enable him to appear and fight this issue in the absence of the judgment-creditor.

There is no procedure in the Indian Procedure Code similar to that in our O. XX which is based on the English Rules of Procedure.

There is no doubt at all that in England an assignee of a decree can only apply for a garnishee order if he has first got the leave of the Court. Under our O. XIX, r. 13, if an assignee applies for execution of a decree, notice to the assignor and the judgmentdebtor is mandatory and the decree can not be executed until the Court has heard their objections, if any. In my view, the notice, that is required there, is notice from the Court, and there must be an application made to the Court.

The fact that the assignor and judgment-creditor may have signed a document waiving notice and saying that they have no objection may be a very strong ground that the application to issue process for execution should be granted. But I cannot see that it is any reason why the application should not be made. Before the Court can grant it there must be an application to the Court. And until there is such an application and notice has been given by the Court and the Court allows the application to proceed, I think the assignee cannot obtain execution. At first sight it appeared to me that under O. XIX, r. 13, an application by an assignee of a decree for execution during the pendency of an application for execution by the assignor would be a fresh application for execution. However, on the Indian authorities, I think, I must hold that such an application is an application for the continuance of the proceedings by the assignee: But I know of no case either in India or in England in

which an assignee was allowed to appear in proceedings such as the present without having made any application to the Court. I am of the opinion that the assignee has not taken the proper steps to enable him to appear and fight the issue in this case.

The only other way apart from O. XIX, r. 13, whereby the assignee could under the rules appear in the absence of the assignor is by way of a motion for continuance under O. XXI, r. 9. No such motion has been made in this case and Mr. Burke submits that that rule does not apply to proceedings in a case after decree. On the Indian authorities, he appears to have been right though I personally would have thought in the absence of authority that garnishee proceedings come within the definition of suit in the Civil Procedure Ordinance, namely: "all civil proceedings commenced in any manner prescribed". However, if O. XXI, r. 9, does not apply then it appears to me that the only other way Mr. Burke's client could appear is by application under O. XIX, r. 13. No such application nor any application was made and so I hold that Mr. Burke has not right to appear in this case. On the record the only person who can fight this issue is the decree-holder who applied for the order nisi. He had notice of the date of hearing of this issue and did not appear. In these circumstances, I discharge the order nisi for want of proper prosecution. There is only one thing further that I wish to say and that is that as this is a technical matter and one on which there appears to be no direct authority in this Colony, I would welcome an appeal. No order as to costs. Leave to appeal.

The assignee and the original decree-holder appealed.

Trivedi for the Original decree-holder).

*Burke* for the appellant (Assignee of the decree).

The question in issue was the liability of the garnishee at the date of the order nisi.

The garnishee paid the wrong person on the wrong document. This payment was not in accordance with either of the orders garnishee nisi both of which had previously been served. The garnishee's debt was not assigned to the person whom he paid: Kenya Consolidated Goldfields Ltd. v. A. M. Marwaha (4 E. A. C. A. $16)$ .

The garnishee did not show cause and the order should have been made absolute. Notice under O. XIX, r. 13, need not be in writing.

The assignee is a decree-holder as defined by the Civil Procedure Ordinance. There was no necessity for a fresh application by the assignce. He referred to Dwar Buksh Sirkar v. Fatik Jali (26 Cal. 250); Venkatachalam Chetti v. Ramaswamy Servai (55 Mad. 352) and Chitaley and Rao on Indian Civil Procedure Code, 1908, Vol. 2, pp. 1740 and 1743.

Slade for the respondents: $\rightarrow$

On denial of liability by the garnishee an issue was framed under O. XX, r. 4. The trial of that issue is a suit in which the judgmentcreditor is in the position of plaintiff and the garnishee is in the position of defendant.

As the judgment-creditor did not appear on the day fixed, the magistrate had no option but to dismiss the suit: O. IX. r. 19.

The proceedings were not execution proceedings so the cases cited for the appellants do not apply. There is no procedure in India similar to that provided by O. XX.

The assignee could only be heard if he had followed the procedure in O. XXI, r. 9. Even if the proceedings were execution proceedings O. XIX, r. 13, applies. O. XIX, r. 13, applies to the application for execution by an assignee and not to the continuation of such proceedings. The provisions of O. XIX, r. 13, were not complied with. Judicial notice cannot be waived.

Whatever view is taken the assignee must make some application before he can be heard.

Burke in reply: $-$

The facts show that the respondents were liable at the date of the order nisi. They amount to an admission of liability under O. IX, r. 19.

O. XX, r. 4, should be read with section 34 of the Civil Procedure Ordinance. The trial of the issue is not a suit.

JUDGMENT.—I find myself in general agreement with the decision of the learned Resident Magistrate on the question of procedure involved in this appeal. The question is not free from difficulty, but my view is that Mr. Burke was not entitled to appear in the proceedings in the absence of an application of some sort. If the matter be looked at in connexion with O. XX, r. 4, it seems to me that from the wording of that rule which is taken from the English procedure and has no parallel in the Indian Code, the trial of the liability of the garnishee must be regarded as a suit within the definition of that term in the Code. If it is a suit then the provisions of O. XXI. r. 9, would seem to me to apply and inasmuch as the leave of the Court was not obtained for the continuance of the suit in the name of the transferee he had no right of audience in the Court below. An argument was addressed to me that even if the transferee had no such right the learned magistrate on the evidence before him should have decided the issue against the garnishee. I do not think so. Before it could be so decided it would have to be clear that the garnishee had receded from his denial of liability—in other words had admitted the claim (O. IX, r. 19). My view therefore is in agreement with that of the learned magistrate in his having decided the issue of the liability of the garnishee as he did. But even if the questions were considered to fall under O. XIX, r. 13, in the absence of an application in the terms of that rule-not for recognition of the assignment but for execution—(I do not mean for a fresh attachment) in my opinion the transferee could not be heard. I dismiss the appeal with costs.