Walji and Others v Shankerdass (C.A. 35/1932.) [1933] EACA 3 (1 January 1933)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), ABRAHAMS, C. J. (Uganda), and SIR JOSEPH SHERIDAN, C. J. (Tanganyika).

## GOVIND WALJI AND OTHERS (Appellants) (Original Garnishees)

$\boldsymbol{v}$ .

## SHANKERDASS (Respondent) (Original Plaintiff). C. A. $35/1932$ .

Garnishee proceedings-Kenya Civil Procedure Rules-Order XX-Alienation of property after attachment-Section 47. Civil Procedure Ordinance—Attachment before judgment— Order XXXVI.

Held (20-6-33).—That a prohibitory order under Order XX before judgment is invalid.

Schwartze for Appellants.

Mangat for Respondent.

The respondent in this appeal on 1-9-31 obtained judgment in the Supreme Court of Kenya against Wali Mohamed and Miran Bux for Sh. 3,297/41, with costs and interest. On 17-11-81 a garnishee order issued under Order XX against the appellants (garnishees) in respect of moneys said to be owing by them to the said Wali Mohamed and Miran Bux. On 26-1-32 the garnishee order nisi was discharged with costs, and on 27-2-32 leave to appeal against that order of discharge was granted on terms. The matter was on 2-7-32 referred back by the Court of Appeal to the Supreme Court to determine the following issue in the garnishee proceedings: <sup>1</sup> Did the garnishees have money belonging to the judgment debtors in their hands at the time of service of the prohibitory order, and, if so, does that fact constitute a present indebtedness within the meaning of Order XX." On 7-12-32, the Supreme Court found that the garnishees had money belonging to the judgment debtors in their hands at the time of service of the prohibitory order to the extent of Sh. 1,498/47, and that this constituted a present indebtedness under Order XX. From that finding this appeal was brought.

Schwartze-Referred to Order XXXVI, Rule 11, and submitted that garnishee proceedings before judgment cannot be brought under Order XX. 4 Bom. 326; 19 Bom. 544.

Mangat.—That if the order was bad, the matter should have been the subject of the previous appeal.

Schwartze replied.

SIR JACOB BARTH, C. J.—This appeal arises from proceedings begun on the 13th June, 1931. On that date, Dickinson, J., issued a prohibitory order restraining the present appellants from paying the defendants in the suit, Wali Mohamed and Miran Bux, a sum amounting to Sh. 3,500 belonging to such defendants. A decree in the suit was obtained on 1st September, 1931, and garnishee proceedings against the present appellants were begun by the application of 12th November, 1931. The garnishee order nisi was discharged on 26th January, 1932, on the ground that it could not be proved that the garnishees had money belonging to the judgment-debtors in their hands at the time of the garnishee order nisi.

This order was appealed against by the judgment creditor on the ground that the learned Judge who made it had not taken into consideration the effect of the prohibitory order of 19th June, 1931. The appeal was heard and decided on the footing that the prohibitory order was a valid order, its validity not being called in question by the respondent: The Court of Appeal, after a reference to section 47 of the Civil Procedure Ordinance, sent back two issues for trial: (1) Did the garnishees have money belonging to the judgment debtors in their hands at the time of the prohibitory order; and (2) If so, does that fact constitute a present indebtedness within the meaning of Order XX? The learned Acting Judge who tried these issues found that the garnishees had money belonging to the judgment debtors in their hands at the time of the prohibitory order to the extent of Sh. 1,493/47. and that such constituted a present indebtedness under Order XX. It was argued by Mr. Schwartze, for the present appellants, that the prohibitory order was bad, but the learned Acting Judge found himself unable to deal with the validity of the prohibitory order, as no appeal had been lodged against the order which was made by Dickinson J. It is regrettable that in the former appeal the validity of the order was not called in question. In my view, it is clearly invalid. Order XXXVI deals with the attachment before judgment of property in the possession of the defendant, and is in my opinion inapt to deal with such matters as come within garnishee proceedings. It is common ground that at the time of the garnishee order nisi under Order XX the garnishees were not in possession of any moneys due to the judgment. debtors.

The appeal should be allowed with costs here and in the Court below.

ABRAHAMS, C. J.—This appeal should be allowed. In order to hold that there was an indebtedness within the meaning of Order XX at the time the prohibitory order was made, it is necessary to assume that the prohibitory order was valid. But in no circumstances could such a prohibitory order have been valid, and therefore the respondent is basing his argument upon an untenable hypothesis. The issue framed by the Court of Appeal logically imports an inquiry into the validity of the prohibitory order, and had the learned Judge, instead of holding he had no power to enter into this question, actually decided it in favour of the appellant, how could this Court have logically held that he would have been wrong to say the order was invalid, when in actual fact it is invalid? I would allow the appeal and award the appellant costs in this Court and in the Supreme Court.

SIR JOSEPH SHERIDAN, C. J.-It is a matter for regret, as counsel for the appellant has frankly stated, that the question of the validity of the prohibitory order was not argued in the first appeal. Had it been, there would have been no further appeal, for in my opinion the prohibitory order was bad, and being bad there could be no question of attaching anything in the hands of a third party until the garnishee order had been obtained under Order XX, and by that date it is common cause that there was no debt owing by the garnishee to the debtor. In short, had the validity of the prohibitory order been raised and argued on the hearing of the first appeal, the appeal must have been dismissed. I agree with Mr. Schwartze's argument that before it could be said that there was an indebtedness within the meaning of Order XX at the date of the prohibitory order, it was necessary to determine the validity of that order, and I am of opinion that the issue as framed by the Court of Appeal was in sufficiently wide terms to warrant him arguing as he did the question of its validity and the learned Judge deciding the question, even though his doing so involved his taking a different view from that of a judge of co-ordinate jurisdiction. Being satisfied that the prohibitory order was bad, a fact admitted before the Supreme Court, and that Order XXXVI has no application to the case, it follows that this Court is precluded from making an order that the appellant should pay any sum to the respondent. I would allow the appeal and give the appellant the costs of the appeal and the costs in the Court below.