This revision petition arises out of an order passed by the learned District Munsif of Kumbakonam under O. 21, R. 41 of the Civil Procedure Code. The respondent, the Union Bank Ltd., Kumbakonam, obtained a decree against one Kalyanarama Iyer. After obtaining the said decree the Bank made an application to examine the petitioners Mathiyam Bivi Ammal and her agent Sheriff Rowther and also to produce the account books and other documents in their possession for the purpose of finding out whether any sum of money is due and owing by them to the judgment-debtor in the suit. In answer to the said notices an affidavit was filed denying that any sum of money is due by them to the judgment-debtor and objecting to their examination and production of the account books. The learned District Munsif made an order that Mathiyam Bivi Ammal must produce the account books and in making the order he observed as follows:

I am constrained to order Mathiyam Bivi Ammal to produce her account books into Court. She may rest assured that she need not have any apprehension that this decree-holder will be permitted to fish out any information from her account books and use it against her in O.S. No. 17 of 1937 of the Kumbakonam Sub-Court or in any other litigations.

It may be mentioned that O.S. No. 17 of 1937 was a suit by the Union Bank against her in respect of certain dealings and one of the allegations by her in her affidavit was that the Bank was trying to fish out information regarding it by causing the production of her account books. It is with reference to that allegation that the learned Judge made the observation referred to above. But the main contention of Mr. Rajah Iyer is that, as his clients have denied the existence of any debt due and owing to the judgment-debtor, it is not open to the Court under O. 21, R. 41, to examine them or direct them to produce any account books. In support of the contention, the argument which he advanced was that where a debt is alleged to be due to a judgment-debtor from a person and the said debt is attached and the debtor denies the debt, it is not open to the executing Court to go into the truth or existence of the debt but can only direct a sale thereof or appoint a receiver to realise the same; it would be anomalous that even before the attachment a person can be examined and asked to produce his account books when he is denying the debt. In order to appreciate this contention it is necessary to examine the scope of O. 21, R. 41, Civil Procedure Code. The object of the said section is no doubt clear. It is to enable a decree-holder to get the necessary information in regard to the properties of his judgment-debtor so that he can realise his debt by resorting to his property which is available without difficulty and trouble. It is in effect a provision to obtain discovery in aid of the execution of the decree which he has obtained. The section says that the decree-holder may apply to the Court for an order that the judgment-debtor, or in the case of a corporation, any officer thereof or any other person may be orally examined and the s ection empowers a Court to make an order for the attendance and examination of those persons, namely, the judgment-debtor or officer or other person and also cause them to produce any books or documents. According to the plain language of the section any other person might include a garnishee, that is, a person who owes or is alleged to owe a debt to the judgment-debtor. But the question still remains, in what circumstances can the examination of such a person be permitted and subject to what limitati ons In 1859 when the Civil Procedure Code was first enacted in India, that is, Act VIII of 1859, a similar provision was made. That was S. 219, which ran thus:

Before granting the order for a general attachment or at the instance of the plaintiff at any time after judgment and before complete execution of the decree, the Court may summon the person against whom the application is made and examine him as to the property liable to be seized in satisfaction of the judgment. The Court may also, of its own motion or at the instance of any person interested in the enquiry, summon any other person whom it may think necessary and examine him in respect to such property and may require the person summoned to produce all deeds and documents in his possession or power relating to such property.

It will be seen that section was to be resorted to in cases where an application is made for a general attachment of the moveable property of a judgment-debtor and the Court was given a very wide discretion not only to summon a person against whom the application is made but also to summon any other person whom it may think necessary and examine him. In the 1877 Code, provision for general attachment was done away with and S. 219 was modified and enacted as S. 267 which ran thus:

The Court may, of its own motion or on the application of the decree-holder, summon any person whom it thinks necessary, and examine him in respect to any property liable to be seized in satisfaction of the decree, and may require the person summoned to produce any document in his possession or power relating to such property and before issuing the summons of its own motion, shall declare the person on whose behalf the summons is so issued.

It will be seen from this section, that the Court is empowered to summon any person whom it thinks necessary and may require the person summoned to produce any document in his possession or power. Vide In re Premji Trikumdas (17 Bom. 514) [a mortgagee in possession]. The corresponding provision in the Code of 1882 was word for word the same as that of the Code of 1877. In the present Code it is made very clear that an application can be made for the examination of any person other than the judgment-debtor as indicated in Cl. (c), as Cl. (a) relates to an individual judgment-debtor and Cl. (b) relates to a corporation being the judgment-debtor. Prima facie therefore having regard to the history of this section, it cannot be doubted that a person other than the judgment-debtor including an alleged garnishee may be examined under the section. But the question that still remains, as already stated, is, what is the extent of the power conferred by the rule It may be instructive in this connection to examine the history of the corresponding rule in English Law during the corresponding period commencing from 185

4. The 60th section of the Common Law Procedure Act, 1854 ran thus:

It shall be lawful for any creditor who has obtained a judgment to apply to the Court or a Judge for a rule or order that the judgment-debtor shall be orally examined as to any or what debts are owing to him and the Court or Judge may make such rule or order for the examination of such judgment-debtor and for the production of any books or documents.

t will be seen that this section provided only for the examination of the judgment-debtor. As observed by Jesssel, M.R. in Republic of Costa Rica v. Strrousberg (1880) 16 Ch. D. 8 at p. 12), the examination must be directed to any question fairly pertinent to the subject-matter of the enquiry, which means put with a view to ascertain so far as possible, by discovery from a reluctant defendant, what debts are owing to him, ought to be answered by the defendant. This rule was in substance repeated in 1875 rules (O. 45, R. 1) and later modified and re-enacted as O. 42, R. 32 which runs thus:

When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the Court or a Judge for an order that the debtor liable under such judgment or order, or in the case of a corporation that any officer thereof, be orally examined, as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before a Judge or an officer of the Court as the Court or Judge shall appoint; and the Court or Judge may make an order for the attendance and the examination of such debtor, or of any other person, and for the production of any books or documents.

On a construction of this rule it was held that the words any other person, occurring in the latter part will not have the effect of extending the rule to a person other than the judgment-debtor or the past or present officer of a corporation which happens to be the judgment-debtor. In Hood Barrs v. Heriot Ex parte Blyth (1896) 2 Q.B. 338) the Court declined to examine an assignee of the judgment-debtor to whom the judgment-debtor assigned all arrears of income due and owing to her, the reason being the language of the section did not permit it. Smith, L.J., observed thus:

What is really sought here is to get evidence from Blyth (the assignee) in order that the charge, mortgage, or whatever it is, may be impeached, and this ought not to be allowed under this procedure.

In the case of debts however in England there is a procedure provided for ascertaining the existence of a debt in execution proceedings so that if the garnishee denies the debt, an issue can be raised and decided regarding his liabilityvide the provisions of O. 45, R. 4 of the Rules of the Supreme Court; but there is no corresponding provision in the Civil Procedure Code whereby an executing Court can go into the liability of a garnishee if it is disputed. Our High Court in more than one decision has t aken the view that it is not for the executing Court to determine whether a debt is actually due or not, so that if the garnishee denies the debt the Court has always directed the sale of the debt or the appointment of a Receiver to realise the debt, the question as regards the liability of the garnishee being relegated to proceedings taken expressly for the recovery of the actual debt. I must state that some cases have taken the view that under O. 21, R. 66 it may be open to the Court before directing a sale to ascertain if a debt exists and direct the sale only if it appears prima facie to the Court that the debt is due; but that examination is only for purposes of O. 21, R. 66 and the proceedings under that section are always characterised as ministerial and not judicial.

The question now arises that if there is no procedure open to an executing Court to determine upon the truth of the debt which is attached when the garnishee denies the debt, can this be indirectly accomplished under O. 21, R. 41 If not, what has the Court to do when an application is made for the examination of the alleged garnishee who comes to the Court and denies that he owes anything to the judgment-debtor What the section says is that the Court may make an order for the examination of the persons mentioned therein. A discretion is therefore vested in the Court and that discretion has to be exercised in the case of a garnishee by also taking into consideration the other provisions of the Code. In a case reported in Devalbai v. Devandas (A.I.R. 1933 Sind 350) Rupchand, J.C., seems to have taken the view that if a garnishee denies a debt he ought not to be examined under O. 21, R. 41, relying upon certain observations in Jaffreis v. Tomlinson (3 T.L.R. 193) where it was held that a garnishee who disputes his liability to the judgment-debtor is not a person who can properly be ordered to attend for examination under O. 42, R. 32 of the Rules of the Supreme Court and that if the power to order such examination is given by the rule, it is a discretionary power and ought only to be exercised with great caution. Cave, J., made the following observations in that case:

It would be perfectly monstrous that where an issue had been arrived at between two parties, one of whom alleged that money was due from the other to the judgment-debtor and the other denied that allegation, the person who alleged that the money was due should be able to summon the other before the Registrar for the purpose of examining him about matters which really had to be tried in the issue.

It will be seen that the view of Cave, J., is that if an issue is raised as to the existence of the debt it ought to be tried in other proceedings and a Court should not embark on the trial of that issue in a proceeding under O. 42, R.

32. In the course of the argument Cave, J., made the observation that even if there is a power, it should be cautiously exercised. It may be urged that the English rule is not the same as the Indian rule. But in my opinion the same principle has to be kept in view in construing O. 21, R. 41, Civil Procedure Code, especially where the Code does not confer power on the executing Court to adjudicate as to the liability of the garnishee. So the discretionary power that is vested under O. 21, R. 41 to examine a garnishee must ordinarily be limited to cases where the garnishee admits the debt and the Court may find out the exact extent of the debt before ordering execution. But if the debt is totally denied, the Court ought not to ordinarily examine the garnishee or direct him to produce account books unless it is satisfied on the affidavits or on the examination of the judgment-debtor that in the interests of the decree-holder the garnishee should be examined and his books produced to better enable him to proceed with the execution and to prevent a possible fraud or collusion between the judgment-debtor and the garnishee. For that purpose the alleged garnishee may be examined with reference to the books or other documents which he may be directed to produce for finding out whether there were any dealings between him and the judgment-debtor and there would thus be a probability of a debt being due and the garnishee ought not to be subjected to any examination or cross-examination for the purpose of determining whether the liability subsists or not. In this case I take it that the learned Judge in making the order which he did was satisfied that in the interests of the decree-holder to prevent a possible fraud or collusion it is necessary to have the books produced into Court. I find from the order of the learned Judge that he is anxious to safeguard the rights of the petitioners and assured them that the decree-holder will not be allowed to fish out information with reference to O.S. No. 17 of 1937 (Kumbakonam Sub Court). I am therefore not inclined to interfere with his order in revision.

It has been brought to my notice that a very large number of books and documents have been directed to be produced. I do not know why the village accounts were asked to be produced. The only books that could throw any light on the question of debt would be the day-book, ledgers, chitta books and rough account books and a reference to those books ought to be quite enough to satisfy whether there were dealings between the judgment-debtor and the petitioners and as a result of such dealings any sum is likely to be due and owing by them to the judgment-debtor and any order for further production would be oppressive.

With these observations I dismiss the petition but without costs.