Murugappa Chetty and Others vs Ranganayakulu Chetty and Others

Krishnaswami Aiyar, J.—I think the order of the Registrar of the Small Cause Court, Madras, in this case is wrong in directing that the

petitioners should pay the debt which they owed to the judgment-debtor. The garnishee proceedings were instituted against the petitioners only as

a firm. There seems to be no warrant for a firm of partners being proceeded against in their firm name, and if there is no warrant for proceeding

against them as defendants in that form, it stands to reason that there is no warrant for instituting garnishee proceedings against certain individuals in

their firm name. It must be taken, therefore, that no notices were issued to the individuals who were sought to be made liable and the absence of

such a notice, is to my mind, a material irregularity which vitiated the proceedings of the Registrar.

It is further contended for the respondents that another remedy was open to the petitioners and that I should not interfere in revision. The

remedy suggested is re-hearing before the Full Court, and Section 36 of the Small Cause Courts Act is relied on. That only shows that the

Registrar''s order is to be dealt with as if it were an order by a judge. But. Section 38 says that it is only where a suit is contested that a re-hearing

by the full court can be asked for in respect of an order passed by a judgment. Here admittedly the suit was not contested, but the respondent''s

vakil suggests that under Rule 223, the garnishee proceedings are to treated as a suit if the persons who are sought to be made liable contested

their liability. Assuming that the garnishee proceedings would be converted into a suit if the persons served with notice for fixing them with liability

appeared and contested, in this case, admittedly, the garnishee order itself was made ex Porte, and it is not pretended that an application to set

aside an ex parte order is to be treated as a suit. I think, therefore, that Rule 223 is not, by the mere fact of contested garnishee proceedings being

liable to be treated as a suit, any warrant for holding that an application could have been made to the full court for a re-hearing.

So if the remedy by way of re-hearing was not open to the petitioners, they were perfectly justified incoming to this court. I hold then, on the

ground that there was a material irregularity on the part of the Registrar in making the garnishee order against the petitioners, that the order was

bad and I set it aside. Tile petitioners will have their costs in this court; the costs below will be dealt with by the Registrar.