Muktilal Agarwala vs The Tin Plate Co, of India Ltd.

Meredith, J.—This application in revision is by the decree-holder in garnishee proceedings.

A preliminary objection was raised that the application was not maintainable as an appeal lay. It appears, however, that an appeal was originally filed and necessary court-fees paid, and it was subsequently treated, under the orders of a learned Judge of this Court, as an application in revision. It it unnecessary, therefore, to consider whether an appeal lay or not.

The facts are that the petitioner obtained a money decree against one Ker Singh, an employee of the Tin Plate Company of India Ltd. This man had a provident fund comprising Rs. 930. On 24th September 1945, at the instance of the decree-holder, an attachment before judgment of this sum was made as against the Tin Plate Company, and notice of the attachment was served upon the eornpany on 26th September. On 21st January 1946, the suit was decreed against Ker Singh, and the attachment was made absolute. When the company was called on to pay the money into Court various objections were raised, and it was stated that on 17th January Ker Singh had resigned and taken away his provident fund money.

The learned Munsif held that the fund was vested in trustees. The company, therefore, was not the garnishee. The attachment order had not been issued against the trustees. Accordingly the application to proceed in execution against the company must be rejected. This order was upheld on appeal.

It is urged before me that under the rules of this particular provident fund, the fund was not vested in trustees, and the trustees were not the owners of the fund. For this proposition I am referred to a decision of Agarwala J, (as he then was), namely, Gopal Dass and Another Vs. Abdul Jabber and Another, . In that case his Lordship construed the rules of this particular provident fund and held that there was nothing in the rules vesting the ownership in the trustees. Only the management and control of the fund had vested in persons called trustees, but there had been no attempt to vest the ownership of the fund in those persons. Accordingly he held that an attachment order could issue in respect of the funds of a subscriber in the hands of the company. I entirely agree with the reasoning of Agarwala J. and I do not wish to repeat what he has said. I have myself also seen the rules of the fund and I have no doubt that the ownership of this fund does not vest in trustees, and there is no trust. The contention, therefore, that the attachment order, if it could be made at all, should have issued upon the trustees must fail. It follows from the decision I have just quoted that the attachment order was rightly issued against the Tin Plate Company, and was perfectly valid. During the continuance of this attachment and while it was in force, the company, on their own admission, handed over the money to Ker Singh on his resignation, and allowed him to take it away. The company had no business to do so, and thereby acted in breach of the attachment order, and have only themselves to thank if they have to face the consequences.

For the opposite party it is argued, in the first place, that the attachment was not valid as it was made under Order 88, Rule 5, Civil P.C., which provides for attachment of property in the hands of the judgment-debtor himself, and not under Order 21, Rule 46 of the Code which was applicable. From a perusal of the judgments of both the Courts below, it does not appear to me that this particular objection to the attachment was specifically taken. The attachment order is not before me, and I do not know whether it was headed as under Order 88, Rule 5 or Order 21, Rule 46. However it was headed seems to me immaterial. That was merely formal. It was an attachment made in accordance with the procedure outlined in Rule 46 which was alone applicable to attachment of property (not?) in the hands of a judgment-debtor, and it must be taken to have been an attachment under the provision however it was formally headed.

Secondly, it has been argued that whether the ownership WAS actually vested in the trustees or not, they were the holders of the fund, and the attachment order could, therefore, only issue against them. In my opinion this contention is incorrect. Theta is nothing in the rules to make the trustees the holders of the fund. They are merely made its controllers. Legally, in my opinion, the company would be the holders of the fund and responsible to the subscribers for the money held. A suit by a subscriber for recovery of his money would have to be brought against the company, and not against the trustees so called, who are at most mere managers. This contention also, in my opinion, fails.

The proper order in this case, in my view, was an order directing execution to proceed against the company as garnishee. This application is accordingly allowed with costs; hearing fee two gold mohurs. The execution should now proceed against the Tin Plate Company.