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Suit No. 425 of 1951, Ex. Application 229 of 1955, decided on 24th February 1956.

, Ss. 60, 64‑Defendant's current account in Bank attached before judgment‑Bank paying out the amount to judgment debtor on a letter from the Court Nazir found later to be forged‑Bank liable to make good the amount to decree‑holder.

A sum of Rs 1,00,000 lying in the current account of the defendant with the garnishee Bank was attached before judgment. The Bank however, paid out the amount to the defendant, on receiving a letter purporting to proceed from the Court Nazir that the attachment had been raised on the defendant's executing a security bond, which letter was later found to be forged.

Held, that the Bank was liable to the decree‑holder for the amount attached.

Further : that service of a garnishee order nisi con stituted by operation of law, a sufficient demand on the Bank ;

that current account credit balance constitutes a debt within meaning of section 60 C. P. C. although no demand no of payment has been made.

That the payment to defendant‑judgment‑debtor was void under section 64 C. P. C. That, whether the Banker acted in good faith was

Rogers v. Whitelay 1892 A C 118, Joachinson v. Swiss Bank Corporation (1921) 3 K B 110, (1908) 124 L T J O 569, Smith v. Union Bank of London 1875 L R 10 Q B 295 and 14 L J Eq. 1845 Ex‑parte Joliffee 134 ref.

Noorul Arfin and Wahiduddin for Decree‑holder.

Fazlur Rehman for garnishee Bank.

---‑On 2nd August 1950, the defendant opened current account with the Lloyds Bank, Karachi, hereinafter referred to as the Bank, with a deposit of Rs. 1,00,000 in the name of Ismail Adtiyanwala. On 14^th July 1951, the Bank received from the Court an order under Order XXXVIII rule 5 Civil ‑P. C. stopping operation of the account of Sulleman Ahmad alias Ismail Ahmad defendant. On 27th August 1951, a consent order was passed by the Court in the suit to the effect that if the defendant gives security to the satisfaction of the Nazir for the amount of money attached in the Lloyds Bank the prohibitory order will stand discharged. On 8th January 1952 an order under section 151 Civil P. C. was received by the Bank restraining them from allowing Ismail Adtiyanwala and Ismail Ahmad Adtiyanwala from operating their bank account.

On 3rd December 1954, the Bank received a forged order reproduced below

To

The Garnishee abovenamed.

Whereas the defendant above named has furnished security in this Court to the extent of the amount lying with the garnishee which is Rs. 1;00,000 the Court has therefore raised the interim attachment dated 14th July 1951 and the interim injunction dated 8th January 1952.

You the garnishee abovenamed are hereby informed that the monies of the defendant in your hands, standing in the account styled "Ismail Adtiyanwala" may be paid to him or any one else on his behalf and cash cheques drawn on that account in your Bank; and that all the prohibitory orders are withdrawn hereby.

Given under my hand and seal of the Court 1st day of December 1954".

By order

(Sd.) M. S. BHUTTO

Nazir

The record shows that the Court did not issue this order and the seal and signature were forged. Mr. Raymond, appointed as receiver for the decree holder, who filed this execution application and Mr. Bhutto whose signature appeared in the order deposed to these facts.

On 4th December 1954, the Bank wrote a letter to Ismail Adtiyanwala informing him that the garnishee order served on the Bank in July 1951, had been withdrawn. On ‑7th December 1954, Ismail Adtiyanwala wrote to the Bank asking his account to be closed and requiring the Bank to send him the money by cheque.. On 9th December 1954, the Bank sent him the required cheque for Rs. one lakh.

On 3rd December 1955, the decree‑holder filed the execution application calling upon the garnishee to deposit in Court the amount lying in the account of the defendant and attached before judgment under Order XXXVIII rule 7 read with Order XXI rule 46‑A Appendix E Form 17. ‑

Mr. Fazlur Rehman for the Bank contended that the banker's debt was not repayable without previous demand which was a condition precedent to its constituting a present enforceable debt. But this does not affect garnishee pro ceedings served on the banker. The service of a garnishee order nisi on the Bank was held by the House of Lords in Rogers v. Whitelay (1892 A C 118) to attach and bind the whole of the judgment‑debtor's balance in current account. And under the judgment in Joachinson v. Swiss Bank Corporation ((1921) 3 K B 110) it was distinctly held that the service of the garnishee order nisi constitutes, by operation of law, a sufficient demand.

Mr. Fazlur Rehman's second contention was that the money in the current account was not a debt within the meaning of section 60 Civil P. C. In (1908) 124 L T J O 569 it was held that the current account credit balance constitutes a debt accruing due, although no demand of payment has been made. In Rogers v. Whitelay (1892 A C 118) it was held that the service of a garnishee order nisi founded on a judgment against the customer ties up the whole credit balance on current account irrespective of the relative amounts of the judgment and the balance. The orders served on the garnishee were in strict compliance with the form above mentioned.

The third contention raised was that as the payment to judgment‑debtor was not voluntarily made, it was not void under section 64 Civil P. C. In Smith v. Union Bank of London ((1875) L R 10 Q B 295) affirmed in 1 Q B 35 it was held that apart from any question between himself and his customer the bank who pays the bill domiciled with him on a forged endorsement is liable to the true owner for conversion of it, the payment being to an unlawful possessor incapable of giving a discharge. The banker would, of course, have a theoretical remedy against the person who received the money, if he were a forger or a party to the fraud. Whether Mr. Bhutto forged it or not or whether the banker acted in good faith is immaterial. In Ex‑parte Jolifee (14 L J Eq. (1845) at 134) the Bank was held liable to the customer when the Bank paid money under a forged probate presented by a third party.

The contentions raised must be repelled. The Bank to deposit the amount attached. Costs to be borne by the Bank.

A. H. Judgment‑debtor's contentions repelled.

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