Bangladesh Shipping Corporation (Appellant)
Vs.
Rafique Ahmed (Respondent)
Supreme Court
High Court Division
Chittagong Bench
(Civil)
JUSTICE
Fazle Hussain Md. Habibur Rahman J
Qazi Shafiuddin J
Judgment dated : April 28, 1987.
Lawyers Involved:
Ahsanul Kabir, Advocate – For the appellant.
A.K.M. Shafiqur Rahman with Mostafa Kamal Pasha, Advocate – For the respondent.
Cases Referred to-
Md. Nurul Islam vs. Md. Abdur Rashid and oths.983BLD (AD) 310; Sardhri Lal vs. Ambika Pershad 15 Indian Appeals 1123JLR, 15 Cal 521 (P.C.).
Appeal from Original Order No. 14 of 1986
With
Civil Rule No.192 (F.M.) of 1986.
JUDGEMENT
Fazle Hussain Mohammad Habibur Rahman J. – This appeal by the defendant-appellant Bangladesh Shipping Corporation is directed against Order No.9 date 22.5.86 passed by Mr. M. I. Hafiz, Subordinate Judge-in-Charge of Second Court of Subordinate Judge, Chittagong in Money Execution Case No. 3 of 1986.
2. Facts of the case are as follows:-
Plaintiff decree-holder respondent Rafique Ahmed, Proprietor M/S. Karnafully Shipping and Trading Corporation, 91 Agrabad Commercial Area, Chittagong instituted Money Suit No. 244 of 1980 in the then 3rd Court of Subordinate Judge, Chittagong (since abolished and merged with the Second Court of Subordinate Judge, Chittagong) against 10 defendants including Judgment-debtor defendant No.1 M/s Saturn Commercial Enterprises (having head office in Dhaka and Branch office in Chittagong.
3. The suit was contested by defendant no. 2 Messrs Ednasa Shipping Company Limited, Hong Kong, defendant No.3 Captain Wong Jinu Kong, the master of the vessel M. V. Lennia (Defendant No. 1 Messrs Saturn Commercial Enterprises and defendant no.2 Messrs Ednasa Shipping Company Limited represented by defendant No.3) and defendant No.6 Messrs. Hegge and Company (Bangladesh) Ltd., Spencer’s Building, Agrabad Commercial Area, Chittagong. The learned Subordinate Judge in the said Money Suit decreed the suit for recovery of TK.9,00,000/- on contest against the defendants 2,3 and 6 and exparte against defendant 1, 4 and 5 with costs. The plaintiff was allowed to get an amount of Tk. 9,00,000/- from defendants 1,2,4,5 and 6 with pendent lite interest of Tk. 15% per annum from the date of filing of the suit till realization of the decreetal dues. The defendants 1,2,4,5 and 6 were directed to pay the decreetal amount to the plaintiff within 90 days from the date of judgment and order dated 4.1.84. A Division Bench of the High Court to which I was a party in F.A. No.6 of 1984 (preferred by appellants defendant no.2 M/s. Ednasa, Hong Kong, Defendant no.3 Captain Wong Jium Kong and defendant No.6 Messrs Hegge & Company (Bangladesh) Ltd. Agrabad, Chittagong) allowed the appeal in part, set aside the decree passed against defendant Nos. 2, 3, 4, 5 and 6 without cost but decreed the suit ex parte against defendant No. 1 Messrs Saturn Commercial Enterprises, Singapore for Tk.5,75,829.02 with proportionate cost and interest pendente lite at the rate of Tk.10% per annum from the date-of institution of the suit till recovery of the same. No appeal was preferred against the said judgment and decree passed by this Court. Plaintiff-decree-holder Rafique Ahmed, Proprietor, Karnafully Shipping and Trading Corporation (Respondent No. 1. in this appeal) put the decree into execution on 19.3.86 in the Second Court of Subordinate Judge, Chittagong being Money Execution Case No.3 of 1986 in accordance with the provisions of Rule 11(2) of Order 21 of the Code of Civil Procedure.
4. On 19,3,86 plaintiff-decree-holder stated, inter alia, in an application under Order 21, Rule 46 of the Civil Procedure Code that he obtained a decree ex parte against the defendant No.1 Saturn Commercial Enterprises, Singapore for Tk.5,75,829.03 with proportionate costs and pendente lite interest at the rate of Tk.10% per annum, that defendant No.6 by letter Ext.2(f) dated 3.10.80 informed the plaintiff that defendant no 2 M/S. Ednasa Shipping Co. Ltd., Hong Kong was holding U.S. dollars 14,326.00 on defendant no. 1’s account and that defendant No.5 Bangladesh Shipping Corporation(the present appellant) was holding U.S. dollars 34,296.60 payable to judgment-debtor defendant No. 1 Messrs Saturn Commercial Enterprises, Singapore, that unless the aforesaid amount belonging to defendant No.1 judgment-debtor lying in the possession and in the hands of the aforesaid Bangladesh Shipping Corporation is attached and unless the Bangladesh Shipping Corporation is prohibited by an order from giving it over to the judgment debtor defendant No.1, the plaintiff decree-holder will be greatly prejudiced and will suffer irreparable loss and injury. On 19.3.86 this application was placed before the Executing Court which fixed 20.3.86 for hearing the petition and for passing the order in presence of the Advocates. On 2O.3.86 the Executing court issued writ of prohibitory order of attachment upon the Bangladesh Shipping Corporation under Order 21, Rule 46(1)(a)(c) C.P.C. fixing 20.4.86 for hearing. On 8.4.86 the decree-holder filed an application praying for a direction to the Bangladesh Shipping Corporation having branch office in Chittagong to deposit an amount of Tk. 8,75,739/97 in the Executing Court. The executing Court allowed the prayer and directed the Bangladesh Shipping Corporation to deposit the said amount in the Court. In the present case the Bangladesh Shipping Corporation is a garnishee, that is a third party who is asked not to pay money to the judgment-debtor because the latter is to satisfy the decree obtained by the decree-holder.
5. On 20.4.86 the appellant Bangladesh Shipping Corporation filed an application stating that the learned Subordinate Judge, Second Court in Money Execution case No.3 of 1986 by his order dated 20.3.86 directed Bangladesh Shipping Corporation to restrain itself from making any payment of Tk.8,75,799/79 to the judgment-debtor Saturn Commercial Enterprises, Singapore, that on 10.4.86 the Bangladesh Shipping Corporation was informed by another order of the Court to deposit the attached amount to Court, but instead of mentioning the correct amount of Tk.8,75,739.97 by mistake the Court mentioned Taka 8,93,451/47 which mistake should be corrected, that the plaintiff decree-holder filed a suit regarding the same money in the Second Court of Munsif, Chittagong being other Suit No. 116 of 1985 wherein the Bangladesh Shipping Corporation was made defendant no.1 and the said suit has not yet been disposed of, that it is necessary that the said Other suit no. 116 of 1985 should be disposed of before the petitioner(Bangladesh Shipping Corporation) is compelled to make any deposit (the said suit no.1 16 of 1985 was subsequently withdrawn by the plaintiff decree-holder on 27.4.86) that the Bangladesh Shipping Corporation had not yet got any instruction from the judgment-debtor regarding the said order of attachment and that in these circumstances the petitioner Bangladesh Shipping Corporation had to pray before the Court for one month’s time to make the deposit of such amount as would be ordered by the Executing Court. The learned Subordinate Judge there upon passed the following order No.5 dated 20.4.86:-
“The Bangladesh Shipping Corporation files a petition along with a fresh power praying for time for depositing the decretal amount into the Court on the ground stated in the petition. Copy served. Considered. The prayer is allowed. To 10. 5.86 for depositing the decreetal amount in Court by the applicant as prayed for.”
6. On 10.5.86 appellant Bangladesh Shipping Corporation filed another application before the executing Court stating that immediately on receipt of notice of the said Second Court of Subordinate Judge, Chittagong the petitioner Bangladesh Shipping Corporation sent an urgent telex to the judgment-debtor for information but unfortunately no instruction as yet had been received, that it was necessary that the petitioner received instruction from the judgment-debtor for the disposal of the money in question as otherwise the petitioner might be sued by the judgment-debtor in a foreign Court which would also make the vessels of the petitioner liable for attachment causing huge loss and that it was necessary that the petitioner should be given 15 days’ time for receiving necessary instruction from the judgment-debtor.
7. On a consideration of this application the Executing Court passed the following order No.6 dated 10.5.86:-
“Decree-holder files hagira. The applicant Bangladesh Shipping Corporation by petition prays for time to deposit the decretal amount in Court on the grounds stated in the petition. Copy served. No objection (raised by decree-holder if time is allowed) for only 7 days. Considered. The prayer is allowed. To 17.5.86 for depositing decretal amount in Court as prayed for by the applicant.”
8. On 17.5.86 the Bangladesh Shipping Corporation filed an application before the executing Court stating that the petitioner Bangladesh Shipping Corporation sought instruction from the Messrs Saturn Commercial Enterprise for making payment, that they informed petitioner that there was a dispute regarding the money between some of the defendants, that the petitioner had been instructed to pray for time for further instruction and that the petitioner should be allowed time for further 7 days. The executing Court by its order No.7. dated 17.5.86 noted that the Bangladesh Shipping Corporation has prayed for further time for depositing the decreetal amount of Tk. 8,75,739/97 on the ground stated in the petition that subsequently Bangladesh Shipping Corporation filed another petition along with fresh vakalatnama praying for one month’s time to deposit the decreetal amount in Court on the ground stated in the petition, that the decree-holder also filed a petition praying for directing the Bangladesh Shipping Corporation to deposit the said attached amount in Court on the ground stated in the petition and ordered that 18.5.86 was fixed for hearing the matter. On 18.5.86 the executing Court heard both sides and rejected the Bangladesh Shipping Corporation’s petition dated 17.5.86 and allowed decree-holder’s petitions dated 17.5.86 and 18.5.86 and directed the decree-holder to take step, if any, by £. 5,86. On 22.5.85 a prayer was made on behalf of the Bangladesh Shipping Corporation before the Executing Court stating as follows:-
“The original Money Suit No.244 of 1980 and F.A.No.6 of 1984 has been decreed against M/S. Saturn Commercial Enterprise (judgment-debtor) for a sum of Tk. 8,93,451/47 (actually Tk. 8,75,839/97) with interest. On the prayer of the decree-holder the Honorable Court was pleased to order this petitioner (Bangladesh Shipping Corporation) not to give the amount to M/s. Saturn Commercial Enterprise (judgment-debtor) or others. The fact remains that Bangladesh. Shipping Corporation is not in any way connected with M/s. Saturn Commercial Enterprise and does not hold any account in the name of M/s. Saturn Commercial Enterprise and thereby the question of remittance of money to M/s. Saturn Commercial Enterprise by the Bangladesh Shipping Corporation does not arise at all. In the instant case Bangladesh Shipping Corporation acted as agent of the Ministry of Food, Govt. of Bangladesh who acted as Charterer for M/s. Saturn Commercial Enterprise. Thereby in the instant case Bangladesh Shipping Corporation holds all the accounts of Ministry of Food and transactions with the Ministry of Food, Govt. of Bangladesh only and is not in any way connected with M/s. Saturn Commercial Enterprise (judgment-debtor). The petitioner Bangladesh Shipping Corporation has got no money (debt) payable .to M/s. Saturn Commercial Enterprise (the Judgment-debtor) and therefore, the instant Money Execution case (M. Ex. 3/86) automatically fails in its result. It is, therefore, prayed that the Court would be pleased to dismiss the Money Executing Case (M.Ex. 3/86) against the petitioner Bangladesh Shipping Corporation with compensatory cost to the petitioner”.
The Executing Court thereupon passed the following impugned order No.9 dated 22.5.86:-
“Bangladesh Shipping Corporation by a petition supported by an affidavit prays for dismissing this Execution case against the petitioner (Bangladesh Shipping Corporation) on the ground embodied therein. Copy served with objection. Decree-holder also files a petition praying for passing an order to proceed with the execution case against Bangladesh Shipping Corporation, Toyenbi Circular Road, Motijheel C.A., Dhaka, having branch office in Chittagong on the ground embodied therein. Copy served with serious objection. Heard Advocates. The prayer of the petitioner Bangladesh Shipping Corporation is rejected and the prayer of the decree-holder is allowed. The decree holder may take steps if any by 24.5.86.”
Being aggrieved by the said order the Bangladesh Shipping Corporation has preferred this appeal.
9. On 28.5.85 Civil Rule 192 (F. M.) of 1986 was obtained by Bangladesh Shipping Corporation from this Court and all further proceedings of the aforesaid Money Execution case was stayed till the disposal of the present Appeal
10. In Civil Rule No.192 (F. M.) of 1986 it was stated in the counter-affidavit on behalf of the decree-holder opposite party no.1 that the Bangladesh Shipping Corporation has already admitted in the executing Court that they have got money on account of defendant no.1. the judgment-debtor, that in the Money Execution Case No.3 of 1986 against the Bangladesh Shipping Corporation the executing Court issued on 20.3.86 prohibitory order of attachment upon the Bangladesh Shipping Corporation under Order 21, Rule 46(1)(a)(c) C.P.C., that the executing Court on 8.4.86 directed the Bangladesh Shipping Corporation to deposit the decretal amount of Tk.8,75,739/97 including interest and cost, that the executing Court allowed the prayer of the Bangladesh Shipping Corporation and granted time till 1O.5.86 to deposit the said decretal amount in the Court on the ground stated in the petition of the Bangladesh Shipping Corporation and that then extended time till 17.5.86 on the prayer of the Bangladesh Shipping Corporation, that the executing Court rejected further prayer of Bangladesh Shipping Corporation and directed the Bangladesh Shipping Corporation to deposit attached amount in Court and also directed the decree-holder to take steps and by order dated 25.5.86 the listed moveable properties, such as motor vehicles of the Bangladesh Shipping Corporation were attached and given in the Jimma of Mr. Mozaharul Islam, Deputy General Manager(Administrator) on 26.5.86, that the petitioner Bangladesh Shipping Corporation has already admitted the position that the aforesaid amount on account of the judgment-debtor M/s. Saturn Commercial Enterprise is lying with them, they were praying for time only for seeking instruction from the judgment-debtor in respect of this matter, i.e. satisfaction of the decree passed against the judgment-debtor, that subsequently by ill advice in order to harass the decree-holder and by changing lawyer by fresh power with malafide motive and for illegal the petition was filed with false statements, that the petitioner is estoppel under the law from making contrary or contradictory statements to what they have stated in the three earlier petitions in writing and by changing lawyer, the Bangladesh Shipping Corporation stated falsely that the Bangladesh Shipping Corporation is not in any way connected with the M/s. Saturn Commercial Enterprise and does not hold any money on account of M/s. Saturn Commercial Enterprise and therefore the question of remittance of money to M/s. Saturn Commercial Enterprise by Bangladesh Shipping Corporation does not arise or that the Bangladesh Shipping Corporation has got no money payable to M/s. Saturn Commercial Enterprise (judgment-debtor), that the High Court Division in the Judgment of F. A. No. 6 of 1984 observed that defendant no. 6 by letter Ext.2(f) dated 3.10.80 intimated the plaintiff that the defendant no. 5 (Bangladesh Shipping Corporation) was holding U.S. dollar 34,296.60 payable to M/s. Saturn Commercial Enterprise (defendant No.1 judgment-debtor), that the High Court Division in the said judgment observed that this money having been admitted to belong to defendant no.1 (judgment-debtor) may be attached towards the recovery of the amount of decree if any passed against the defendant no.1, that the Bangladesh Shipping Corporation by their various petitions before the executing Court earlier to the last petition admitted the position that they were holding money to be payable to judgment-debtor defendant no.1, and that they were seeking instruction from the judgment-debtor and that the Bangladesh Shipping Corporation is now estopped from making any contrary false and mala fide statement On this ground Mr. A.K.M. Shafique Rahman, the learned Advocate appearing for the plaintiff decree-holder opposite party, submits that the present appeal should be dismissed on merit. He also submits that since an order under Order 21 Rule 46(21)(a)(c) of the C.P.C.is not appealable under order 43 Rule 1 C.P.C. the appeal is not maintainable and that on this ground also the appeal should fail.
11. Mr. Ahsanul Kabir, the learned Advocate for the appellant Bangladesh Shipping Corporation shows S.C. Sarkar’s Book on the Code of Civil Procedure, 3rd edition(1945) page 552-553 and 5th edition 1983, page 598 and submits that by notification No. 1854-G dated 26.1.1935, Rules 46A, 46B, k46C, 46D, 46E, 46F, 46G, 46H were added after Rule 46 of Order 21 C.P.C. by the Calcutta High Court and that consequently the said rules 46A-46H of Order 21 were treated to be the existing law of the then East Bengal (later East Pakistan) within the jurisdiction of the then High Court of Dacca under the relevant laws made on the eve of independence on the 14th August, 1947 and those Rules 46A to 46H of Order 21. C.P.C. continue to be the “existing laws” in Bangladeshas defined in Article 152(1) of the Constitution of Bangladesh. In the 3rd Edition (1954) at page 553 of S.C. Sarker’s book of the Code of Civil Procedure it is rightly noted that the High Court of East Bengal and Assam have the same amendments as added Rules 46A-H of the Calcutta High Court (by notification no. 1854-G dated 26.1.1935. The learned Advocate for the appellant points out that Order 21, Rule 46H provides that an order made under Rules 46B, 46C, or 46E of Order 21 shall be appealable as a decree. He also submits that rule 46C of Order 21 C.P.C. provides that where the garnishee disputes liability, the Court may odder that any issue or question necessary for the determination of liability shall, be tried as if it were an issue in a suit, and upon the determination of such issue the Court shall make such order or orders upon the parties as may seem just. He also refers to Rules 58-63 of order 21 C.P.C. regarding investigation of claims to, and objections to attachment of, attached property in execution of a decree.
12. Mr. A.K.M. Shafiqur Rahman the learned Advocate appearing on behalf of the respondent decree-holder refers to the decision in the case of Md. Nurul Islam Vs.Abdur Rashid & others reported in 1983 BLD (AD) 310 and submits that since the said Calcutta High Court Rules 46A-46H of Order 21 C.P.C. has not been incorporated in the Code of Civil Procedure as published by the Ministry of law and Parliamentary Affairs of the Government of Bangladesh in 1979 Edition or even in the latest Edition published in 1984 (corrected up to 31st June, 1984) those amendments made by the Calcutta High Court cannot be treated as laws in Bangladesh. In the case of Md. Nurul Islam vs. Md. Abdur Rashid and others 1983 BLD (AD) 310 the Appellate Division seems to have taken the view that rule 2-A of Order XVIII of the Code of Civil Procedure (which was added by the Calcutta High Court by Notification No.15165-G dated 8.11.1927) is a “provision in India”, it is not so in Bangladesh. That Rule 2-A of Order XVIII of the Civil Procedure Code of Calcutta High Court though added in 1927 is not the law of this Country, Mr. A.K.M. Shafiqur Rahman submits, will be gathered from the following observation of the Appellate Division in the case of Md. Nurul Islam Vs. Abdur Rashid and others, 1983 BLD (AD)310:-
“Although we are not in favour of, encouraging a procedure which is not covered by any express provision of the Code, we shall, however, refrain from interfering with the two orders in view of the special facts and circumstances of the present case……………..”
It is noted that there is a provision namely, Order XVIII Rule 2-A of the C.P.C. in India (there being no High Court called High Court of Indian or Indian High Court, it obviously refers to Rule 2A of Order 18 added in 1927 by the Calcutta High Court) which runs as follows :-
“2A. Notwithstanding anything contained in clauses (1) and (2) of rule 2, the court may for sufficient reasons go on with the hearing, although the evidence of the party having the right to begin has not been concluded, and may also allow either party to produce any witness at any stage of the suit.”
The High Court Division in the fact and circumstances of the case there being no provision to meet the situation arising in the present case had, therefore, fallen upon section 151 C.P.C, to meet the ends of justice.”
It will appear from the above quoted decision of the Appellate Division in the case of Md. Nurul Islam Vs. Md. Abdur Rashid and others reported in 1983 BLD (AD) 310 that the question whether the Rules added by the Calcutta High Court before the independence of the country on the 14th August, 1947 which continued to be “the existing law” in East Bengal (later East Pakistan) within the Jurisdiction of the High Court of judicature at Dacca still continue to be the existing law of Bangladesh under the Constitution of Bangladesh which came into force on 16th December, 1972 after the liberation of the country has not been at all raised, argued, discussed and decided in the aforesaid decision. Be that as it may, it will appear from the Code of Civil Procedure as amended by Ordinance No. XLVIII of 1983 that in Order XLIII, in Rule (1) of the C.P.C., after clause (i), the following new clauses were inserted, namely:-
“(ii) an order under rule 60 of Order XXI releasing a property from attachment,
(iii) an Order” under rule 61 of Order XXI disallowing a claim to property attached,”
The impugned order against which the appellant has come is an order under rule 61 of Order XXI of the Code of Civil Procedure disallowing a claim made by the Bangladesh Shipping Corporation (garnishee) to the to the property attached by the executing Court and as such it may be treated as appealable under rule (1)(II) of Order XLIII C.P.C. as amended by Ordinance XLVIII of 1983. Before the, said amendment made in 1983 even if appeal did not lie, revision under section 115(1) C.P.C. would lie before this Court.
13. Rule 46C of Order XXI provides that where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit and upon the determination of such issue shall make such orders upon the parties as may seem just. Even if Rule 46C as aforesaid is not treated to be the Rule adopted in Bangladesh, the fact in this case remains that on 19.3.86 plaintiff decree-holder filed an application under order XXI rule 46 stating that for satisfaction of his decree the amount of U.S. dollars 34,296.60 held by defendant No.5 Bangladesh Shipping Corporation (present appellant) on account of judgment-debtor defendant no.1 M/S, Saturn Commercial Enterprise, Singapore should be attached forthwith and that the Bangladesh Shipping Corporation (appellant) should be prohibited by an order from giving the money over to the judgment-debtor Messrs Saturn Commercial Enterprise, Singapore (defendant no.1 in the suit) and the executing Court by its order No.2 dated 20,3.86 and order No.3 dated 3.4.86 allowed this prayer, that then on 20.4.86 the Bangladesh Shipping Corporation prayed for one month’s time to make the deposit of such amount as may be ordered by the executing court after receipt of instruction from the judgment-debtor regarding the order of attachment and that finally on 22.5.86 the garnishee Bangladesh Shipping Corporation came up with an application stating “that it has been stated by the Decree-holder that Bangladesh Shipping Corporation holds an account Saturn Enterprise with it for a sum of Tk.8,93,451/47, the decreed amount with interest, that the prayer of the Decree-Holder the executing Court was pleased to order this petitioner(Bangladesh Shipping Corporation) not to give the amount M/s. Saturn Commercial Enterprise or others that the fact remains that, on this petitioner (Bangladesh Shipping Corporation) is not in any way connected with the M/s. Saturn Commercial Enterprise and does not hold and owe any account in the name of M/s. Saturn Commercial Enterprise and thereby the question of remittance of money to M/s. Saturn Commercial Enterprise by the Bangladesh Shipping Corporation does not arise at all, that in the instant case Bangladesh Shipping Corporation acted as agent of the Ministry of Food, Govt. Bangladesh who acted as Charterer for M/s. Saturn Commercial Enterprise, that thereby in this instant case this petitioner (Bangladesh Shipping Corporation) holds all the accounts of Ministry of Food and transactions with the Ministry of Food, Govt. of Bangladesh only and not in any way connected withM/s. Saturn Commercial Enterprise, that this petitioner (Bangladesh Shipping Corporation) has got no money payable debt) to M/s. Saturn Commercial Enterprise the judgment-debtor and thereby the instant Money Execution case (M. Ex. 3/86) automatically fails”. The appellant (Bangladesh Shipping Corporation) who on these grounds prayed for dismissal of the Money Execution Case No. 3/86, in fact prayed for releasing the property attached by the executing Court by order No. 2 dated 20.3.86 and order No.3 dated 3.4.86 and denied the claim of the judgment-debtor that the Bangladesh Shipping Corporation holds any money of account of the judgment-debtor M/s. Saturn Commercial Enterprise, Singapore. It appears that after this application was filed by the Bangladesh Shipping Corporation on 22.5.86 the executing Court without investigation of the claim preferred to and objection made to attachment of the money in question simply ordered by its Order no.9 dated 22.5.86 as follows :-
“The prayer of the petitioner (Bangladesh Shipping Corporation) is rejected.”
and directed the decree holder to take steps, if any by 24.5.86.
The executing Court has given no reason why the Court rejected the Bangladesh Shipping Corporation’s petition filed on 22.5.86 wherein it was stated that the Bangladesh Shipping Corporation does not hold any money on account of the judgment debtor M/s. Saturn Commercial Enterprise and that Bangladesh Shipping Corporation holds all the accounts of transactions with the Ministry of Food who acted as Charterer for M/s. Saturn Commercial Enterprise.
14. The executing Court in these circumstances has to follow the provisions of Rules 58,59,60 and 6.1 of Order 21 C.P.C., make investigation of the claim preferred to, or any objection made to the attachment of the money in question, ask the parties to adduce evidence and upon such investigation either disallow the claim of the garnishee that the money in question was, at the time it was attached, not in its possession on account of or in trust for the judgment debtor or release the property (money) from attachment wholly or to such extent as it thinks fit on being satisfied that the garnishee was not possessing the property(money) on account of or in trust for the judgment debtor. In the case of Sardhri Lal Vs. Ambika Pershad, 15 Indian Appeals, 1123 ILR 15 Cal 521 (PC) the Privy Council observed, “The Code does not prescribe the extent to which the investigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the court at the time, leaving the aggrieved party to bring the suit which the law allows to him (See rule 63 of Order 21)”. Rules 59 to 62 of Order 21 C.P.C. in fact provide for a summary investigation into possession as distinct from a thorough trial of ultimate right.
15. It was thus the duty of the Executing Court in this case to ask the decree-holder to establish by adducing evidence that the Bangladesh Shipping Corporation was holding the money on account of or in trust of the judgment-debtor M/s. Saturn Commercial Enterprise, Singapore and also to ask the garnishee to substantiate its objection and after hearing both sides in this respect and after examining the evidence including the necessary documents and connected papers to be filed by both the parties the executing Court was to write out a clear order giving reason why it was disallowing the prayer made by the alleged garnishee Bangladesh Shipping Corporation in which case the Court would have to release the property which stood attached. Accordingly, we are of the view that the executing Court should re-hear the application made by the appellant Bangladesh Shipping Corporation on 12.5.86 giving opportunity to the decree-holder to controvert the assertion made by the appellant Bangladesh Shipping Corporation and also to give le decree-holder as well as the alleged garnishee Bangladesh Shipping Corporation an opportunity to establish their claim by adducing-evidence including relevant documents and connected papers and decide the question in issue after hearing both the parties.lt is also obvious that the question whether the garnishee Bangladesh Shipping Corporation has admitted the plaintiff decree-holder’s assertion that the Bangladesh Shipping Corporation was holding u.s. dollar 14,326.00 on account of the judgment debtor has also to be examined and decided by the executing court after giving both parties opportunity to adduce evidence and after hearing the contentions made by the parties.
16. In the result, the appeal is allowed without any order as to cost. The impugned order No. 9 dated 22.5.86 rejecting the petition dated 22.5.86 filed by the Bangladesh Shipping Corporation is set aside and the executing Court is directed to dispose of the aforesaid application of the Bangladesh Shipping Corporation filed on 22.5.86 in the light of the observations made above as expeditiously as possible preferably within two month from the date of receipt of this order.
Qazi Shafiuddin J. – I agree.
Ed.
Source : 40 DLR (1988) 36