Posted On by &filed under High Court, Madras High Court.

Madras High Court
A.K. Sundaravadivelu Mudaliar vs Anray Sowcar And Anr. on 26 November, 1928
Equivalent citations: 114 Ind Cas 847
Author: Ramesam
Bench: Ramesam


Ramesam, J.

1. This is a Civil Revision Petition filed against an order of the Registrar of the Presidency Small Cause Court in execution of Suit No. 9799 of 1926. The decree-holder applied for recovery of the decree amount from a debtor of the judgment-debtor referred to as the garnishee in the order of the lower Court. The garnishee appeared by Vakil on the day fixed and did not state his pleas that day, but asked for time to state his pleas. The Registrar’s earlier narration of the facts is not inconsistent with the petitioner’s present allegation that he asked for time. The petitioner files an affidavit that he asked for the time. This is not contradicted–the respondent not caring to appear before me. It seems to me that the allegation must be true and I accept it. The order of the Registrar on the record is adjourned to 1st March, 1927.

2. If the garnishee admitted the amount claimed and had no dispute and did not ask for time there is no need for the adjournment. By consent the matter was adjourned to 4th March, 1927 and again adjourned to 9th March, 1927. If there was no dispute, there is no reason for these adjournments. On 9th March, 1927, the garnishee filed an affidavit stating that he did not owe to the judgment-debtor as much as was claimed by the decree-holder and that a suit was pending before the 3rd Judge of the Small Cause Court…it being Suits No. 15954 of 1926. When a suit was actually pending and being contested in another part of the same Court, it is ridiculous to state that there was no dispute. The counter-affidavit filed by the decree-holder does not deny the fact of the filing and pending of the Suit No. 15954 of 1926 but expressly admits it. How the Registrar can, on a perusal of the affidavit and its connected records, come to the conclusion that the sum was due on 18th February, 1927, passes my comprehension. What the connected records of the affidavits are or can be, I am not able to see. The defendant began to contest 8. C.S. No. 15954 of 1926 in January 1927 and how the whole amount claimed can be found to be due on 18th February, 1927, on the ground of no dispute is equally intelligible.

3. But apart from the above incongruities and irregularities of the Registrar’s order his order seems to me to be passed without jurisdiction. The jurisdiction conferred by Rule 33 of the rules of the Small Causes Court to enquire into the liability of the garnishee is only in a case “where a suit might be instituted in the Court”. This means that it is a case when a suit was not actually instituted. Obviously that rule could not have intended that the Registrar should enquire into a claim which is the subject of another suit in the same Court and contemplate the possibility of conflicting decisions by the Registrar and a Judge of the Small Cause Court.

4. In a case when a suit has been instituted the duty of the Registrar was to await decision of the Judge. In the present case, the Suit No. l3954 of 1926 was decided by the 3rd Judge on 30th January, 1928, and it was held that only Rs. 450 was due out of which a portion was paid to the decree-holder in No. 1524 of 1926 and it was also observed that the defendant may raise the question of the validity of that payment in execution and not that Rs. 700 and odd was due to the plaintiff–a conclusion totally inconsistent, with the Registrars conclusion. The Registrar’s order is without jurisdiction and irregular as it was based on misconception of what happened before him. I set aside the Registrar’s order. The amount of the decree was paid by the garnishee (i.e., defendant in S.C.S. No. 15954 of 1926) in Court. The decree-holder-respondent may pursue his remedy against it if it is still in Court. I am informed that it was drawn by the decree-holder in S.C.S. No. 15954 of 1926 but I have nothing to do with it. The 1st Respondent must pay the costs of the petitioner here and in the Court below.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

107 queries in 0.166 seconds.