Full Judgment
1. This execution appeal arises out of an order of the court below deciding certain objections filed by certain persons named Hub Lal, Sukhram, Hira Lal and Bali Charan. The circumstances in which the objections by these persons happened, to be made were these:
2. The appellant Rani Malti Devi obtained a decree for money in a suit which she had filed against Sushil Kumar, Krishna Kumar, Ashok Kumar and Kusum Kumari. The decree was put into execution on the 30th May 1951 for a sum of over rupees twenty two thousands odd. In respect of the execution the decree-holder prayed for orders against certain persons in the nature of garnishes orders calling upon these persons, who, it was alleged, were debtors of the aforesaid judgment-debtors of Rani Malti Devi, not to pay the debt that they owed to the four judgment-debtors of Malti Devi. The alleged debts were said to have been owed by Hublal, Sukh Bam, Hira Lal and Bali Charan and a fifth one with whom we are not concerned to Sushil Kumar, Krishna Kumar, Ashok Kumar and Kusum Kumari in respect of certain amounts of Zare-chaharum in respect of certain sales in which the aforementioned Hublal, Sukhram, Hira Lal and Bali Charan were parties.
3. Notices were issued as contemplated by Order 21, Rule 131 (the rule framed by this Court) calling upon the aforementioned persons to appear before the court and show cause why they should not pay or deliver into court the debt due from them. The persons against whom the notices were served objected to the order being made. The decree-holder made an application apparently, under Order 11 praying for the service of certain interrogatories on the objectors. The Court directed the interrogatories to be served and to be answered by a certain date. The interrogatories were not answered by the date fixed with the result that the objections of the objectors were dismissed or struck off, on the 8th of January 1952. Subsequently to the dismissal of the objections the objectors applied to the court for recalling the order of dismissal and the court actually re-called its order by another order dated the 8th of August 1953 so that the result of this recalling of the earlier order was that the order dismissing the objections in limine ceased to have effect.
The objections were thereafter fought out on the merits and the main controversy that raged between the parties was as to when the payment actually had been made by Hublal and others to their creditors Sushil Kumar and others who happened to be the judgment-debtors of Rani Malti Devi. The question was whether the payment had been made before an order under Rule 132 of Order 21 had been made or the payment had been made merely after the court had directed notice under Rule 131 to issue. The question which fell for determination was a question of fact and has been determined by the court below on the materials on the record. The court below has found that the payment had been made prior to any garnishee order having been made. Thereafter, the court below came to the conclusion that the payments were perfectly regular.
4. Mr. Bhargava appearing for the decree-holder contended, firstly, that the court below was wrong in recalling the order of dismissal which had been made on the 8th of January 1952 when Hublal and others failed to reply to the interrogatories which had been served on them. Consequently, Mr. Bhargava contended, that the court below had gone wrong on the question of fact, namely that the payment had been made before any garnishee order could be made by the court, Mr. Bhargava further contended that whatever else may have been the position it was perfectly clear that the judgment-debtors and the debtors of the judgment-debtors had colluded to defeat the interest of Rani Malti Devi.
5. The order which had been made recalling the dismissal of the objections for failure to answer the interrogatories appeared to us to be emminently a just order. Even if the order could be challenged in this appeal which in our opinion was very doubtful the challenge could be effective if it could be shown that by making the order the court had made, the merits of the matter had been affected. It cannot certainly be contended that the merits of the matter could be affected by making an ex parte order, that is to say without deciding the merits of the matter, The order which was made On the 8th of January 1952 upon the objections of Hublal and others was made not on merits but was an order made ex parte for non-compliance of a certain direction. We are therefore satisfied that even if the order could be challenged, otherwise, tile order was not open to challenge because it did not affect the merits of the matter in view of the provisions of Section 105 C. P. C.
8. In regard to the second contention of Mr. Bhargava, it is important to note that there was no evidence to indicate that the decision of the learned Judge to the effect that the payment had been made before any garnishee order under Rule 132 could be made was wrong. Mr. Bhargava relied on the circumstance that there had been some sort of agreement between the vendor and the vendee in regard to the payment and that indicated that there was an attempt to cheat. We are unable to agree with this contention of Mr. Bhargava. As we understand the law it was open to a prospective garnishee to make a payment of his debt to his creditor even, if he knew that by making that payment he was likely in a way to affect the interest of the creditor of his creditor. The facts and circumstances of the case did not show that Hublal and others made any payment which they were called upon to make to the judgment-debtors of Rani Malti Devi after a proper garnishee order had been made against them.
7. For the reasons given above, therefore, we are of the opinion that there were no merits in this appeal. We accordingly dismiss this appeal but in the circumstances of the case we direct the parties to hear their own costs of this appeal.