Wahid and Sons v Scammell and Others (CC. 373A/31.) [1932] EACA 43 (1 January 1932)

## ORIGINAL CIVIL.

## Before LUCIE-SMITH, J.

## ABDUL WAHID & SONS (Plaintiffs)

$\mathcal{N}$

T. SCAMMELL & $NOOR$ MOHAMED & CO. (Defendants) $\gamma\bar{\Omega}\bar{\Omega}$ $and \ \cdot$

## MUNSHIRAM & CO. (Objectors).

C. C. $378A/31$ .

Attachment before judgment of moneys which have accrued due.

- Held (31-3-32):-(1) Following Webb v. Stanton, 11 Q. B. D. at p. 527 that a debt which has accrued due but of which payment has been postponed is attachable. - (2) That an assignment of such debt before it is actually payable is void as against an attaching creditor unless the provisions of the Chattels Transfer Ordinance (No. 24 of 1930) have been complied with. - (Nore.-See C. A. 29/1932 of the Court of Appeal for Eastern Africa page $47$ ).

Hogan for Objectors.

Modera for Judgment-Creditors in limine.

Hogan relied on two assignments as follows:-

(1) Granted by T. E. Scammell in favour of objectors on 1st August, 1931, whereby for the considerations therein specified all profits accruing to the grantor from a contract for erection of ten Asiatic quarters, type "D" on behalf of the Public Works Department were inter alia to be divided between the parties to the assignment.

(2) Granted by the said $T$ . E. Scammell in favour of objectors on 24th September, 1931, whereby for the considerations therein specified all the moneys then standing or which should thereafter stand to his (the grantor's) credit and to the credit of Noor Mohamed & Co. in the hands of the Public Works Department in respect of the contract therein mentioned were assigned to the said objectors in trust for the purposes therein specified.

Both assignments were registered on 24th December, 1931.

Hogan.—Civil Procedure Ordinance does not refer to future debts. Registration not an essential to establish right of objectors. Absence of registration only affects rights of certain parties into category of which plaintiffs do not come.

As to attachment of debts in future, I rely on Hall and another v. Pritchett, 1877-78. 3 Q. B. D., p. 215, and Badeley $v$ . Consolidated Bank, 38 Ch. D. 238.

Modera.-In view of the provisions of section 16 of the Chattels Ordinance (No. 24 of 1930), the assignments are ineffective as against the attaching creditors (plaintiffs).

English cases are not applicable as the Civil Procedure Ordinance and Chattels Ordinance govern this Court. There was no evidence that plaintiffs had notice of alleged assignments; nor that property had vested in objectors. Referred to section 26 of Chattels Ordinance, supra.

JUDGMENT.-It will be convenient for the purposes of this judgment to set out briefly the history of this case.

On the 25-11-31 Abdul Wahid & Sons, the judgmentcreditors herein, commenced action against T. Scammell and another and on the 26th the judgment-debtor consented to judgment. On the same day the judgment-creditors applied for execution by way of attachment of certain moneys owing to the judgment-debtors by the Public Works Department. This application was granted on the 27th, and on the 7th December the Public Works Department paid certain moneys owing by them to the judgment-debtors into Court. On the 10th December Messrs. Munshiram & Co. came in as objectors to the attachment.

The first point raised by the objectors is that the attachment is invalid insomuch as that at the time of attachment there was no debt owing by the Public Works Department to the judgmentdebtors.

Order XLV, Rule 1, of the English Rules states that "all debts owing or accruing "may be attached. Section 44 of our Civil Procedure Ordinance lays down that "debts" are liable to attachment, and the marginal note to our Order XIX. Rule 43. which is the same as that to Order XXI, Rule 46, of the Indian Code of Civil Procedure, read (prior to the recent amendment) "Attachment of debt, share, etc." (see also Order XX, Rule 1). Our Order XIX, Rule 49, lays down a special procedure where the property to be attached is in the custody of the Court or public officer-section 44 of the Civil Procedure Ordinance makes it clear that for purposes of attachment a debt is "property."

The first thing then we have to decide is: "What is a debt? "

It was laid down by Lindley, L. J., in Webb v. Stanton, 11 Q. B. D. at p. 527: "I should say, apart from any authority. that a debt, legal or equitable, can be attached whether it be a debt owing or accruing; but it must be a debt, and a debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation, debitum in presenti, solvendum in futuro. An accruing debt, therefore, is a debt not yet actually payable, but a debt which is represented by an existing obligation." $\mathcal{L}_{\mathcal{A}}(x) = \mathcal{L}_{\mathcal{A}}(x)$

That definition was accepted as correct in an Indian case, Bancharan v. Adyanath, 36 Cal. 936.

What are the facts in the present case?

If I read paragraph 17 of Exhibit 4 correctly and am right in my interpretation of Mr. Johnson's evidence, then it would appear that the contractor was from time to time entitled to certain payments against certificates. In this case a certificate was, in fact, issued on the 4-12-31 and I think I am justified in finding that there was money owing to the judgment-debtor on 27-11-31 though such money would not be payable until the certificate was issued on the 4-12-31.

It appears to me that this case is practically on all fours with that of O'Driscoll and another v. Manchester Insurance Committee, 1915, 3 K. B., p. 499. That being so, I find that when this attachment was allowed there was a debt owing to the judgment-debtor by a third party and that the attachment is valid.

The next point we have to consider is the meaning of Order X1X, Rule 56, which lays down that the objector must adduce evidence to show that at the date of the attachment he had some interest in the property attached. In passing it is of interest to speculate on the position of the objector had his submission as to the invalidity of the attachment been upheld, for had he satisfied me that at the date of the attachment there. was no property to attach he might have found it difficult to prove that he had an interest in such non-existent property. However, the order I have referred to is the same as Order XXI. Rule 59, of the Indian Code. Now what is the interest in the property which the objector alleges? He has produced an agreement dated the 1st August, 1931, made between himself and the judgment-debtors (Exhibit 1), and an assignment, dated the 24th September, 1931, made between the same parties (Exhibit 2). Neither of these deeds were registered until the 24th December, 1931.

Now section 16 of Ordinance 24 of 1930 lays down that every instrument shall be deemed to be made on the day on which it is executed and shall take effect from the time of its registration. Therefore it would appear that the two instruments I have referred to only took effect from the 24th December, 1931. As regards the assignment it would appear that the provisions of section 26 $(2)$ of Ordinance 24 have not been complied with, and therefore such assignment is void as against the judgmentcreditors herein under section 13 $(1)$ $(c)$ of the Ordinance.

For the above reasons I am of opinion that the claim of the objectors must be disallowed.

ORDER.—Objection disallowed with costs.