Garnishee writ remains pending until pending action concludes to attach future accruing debts.

[*283] 1981 March 12

(ARTEMIDES, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Androulla Loizou Christou,

Plaintiff,

v.

Pandelis HadjiPandela,

Defendant.

(Application in Action’ No. 3253/74).

Civil Procedure - Execution by attachment of property - Garnishee proceedings - Sections 73 and 74 of the- Civil Procedure Law, Cap. 6 - No attachable property existing in the hands of garnishee - But may receive property under a pending action - Direction for writ of attachment to remain pending until disposal of the action.

X. Syllouris, forthe Applicant.

A. Entafianos, for the Garnishee.

No appearance for Judgment-Debtor.

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES. S.D.J.: This is an application for [*284] execution by attachment of property - garnishee proceedings

- filed by the applicant/judgment creditor in Action No. 3253/74. On 21.1 1976 the applicant obtained judgment against the defendant for the sum of £1,134.- plus legal interest and costs. Nothing has been paid since then by the defendant and other modes of execution have been unsuccessful.

On 1 November, 1977, the mother of the defendant died and his father - the garnishee in this application - was appointed by an Order of the Court of 15 December, 1977, as administrator of her property. The applicant took out the garnishee proceedings and obtained an order directing the administrator to hold and not pay over the beneficial interest of the defendant to his mother’s property until further order of the Court.

The present application was filed on

14 January, 1978 and the order was granted ex parte on 16.1.1978. On 18.2.1978 it was served on the defendant and on 19.2.78 on the garnishee. The application was opposed and after many adjournments it proceeded to hearing before me on 3.3.1981.

The only witnesses in the” cause were the garnishee himself and a clerk in the Nicosia Court Registry who produced the relevant file from the probate jurisdiction regarding the administration of the property of the garnishee’s deceased wife. From a perusal of this file and from the undisputed evidence of the garnishee on this point, the property owned by the deceased, and which mainly comprised a house in the old town of Nicosia and [*285] a piece of land in Latsia,, was registered in the name of one of her heirs namely Evanthia HadjiPandela, daughter of the garnishee and sister of the other two heirs, i.e., Pandelakis Hadjipandelas, defendant in the action, and Michalakis HadjiPandelas who is abroad. The said registration was effected in the Nicosia Lands Office on 13.2.1 978, that is six days before service of the order of the Court in these proceedings was effected on the garnishee. The passing of the property by the garnishee to the one of the heirs of the deceased was approved by him and the other heirs on 24.l0.1979. The;defendant has not appeared in these proceedings.

It is the applicant’s submission that the garnishee, who is also an heir of the deceased being her husband, acted in collusion with his son, the judgment debtor, who consented to the passing of his beneficial interest in the estate to his sister in order to avoid paying his judgment debt to the applicant.

From the evidence adduced I have been left with no doubt that the submission of counsel for the applicant is correct for the following reasons: The garnishee, in trying to convince me that he has acted honestly, has produced a declaration by his son, the judgment debtor, to the effect that he is renouncing any benefit to the estate of his mother in view of the fact that during her life time she had given him goods valued at £2,500. - and £1 ,000.- in cash. This declaration is Exhibit 2 and is purported to have been signed by the [*286] Judgment debtor on 1 5.12.1975 and attested by the chairman of Ayia Sophia Community Committee of Nicosia and two witnesses. This document was signed when the mother of the judgment debtor was alive.

The garnishee said that his son had kept with him this document and gave it to him in 1978, just before he proceeded to register the property in the name of his daughter.

For the purposes of this application I find that this document is a forgery for the following reasons: It is indeed peculiar that it is purported to have been signed on 15.2.1975 and refers to a matter financially adverse to the maker of the document, that is, the judgment debtor vis-á-vis his father, brother and sister and yet this document was supposed to have been kept in his own pocket for three years. The application made by the’ garnishee to be granted letters of administration, was filed on 14 November, 1977, and all heirs including the judgment debtor are referred to as the persons who are beneficially interested to the estate of the deceased. Although the judgment debtor signed that document in 1 975 he did not proceed to renounce formally any interest in the estate. Certainly the fact that the judgment debtor had been given such a substantial loan by his mother during her life time was known to the father, the garnishee. This fact was expected to be noted in the application for the grant of letters of administration made by him. [*287]

Judging from the date on which the registration took place, i.e., 13.2.1978 and the dates on which the order of the Court was served on the judgment debtor and garnishee, i.e., 18.2.1978 and 19.2.1978 respectively, I am left with no doubt that the garnishee and the judgment debtor had come to know of the order made by the Court on 16.1.1978 and rashed in collusion to register the property in the name of the daughter of the garnishee so that the judgment debtor’s beneficial interest in his mother’s estate be not made the subject of the order of attachment.

The estate now has no other property except the prospect of damages to be awarded to the estate and the heirs in an action brought for the death of the deceased in a car accident, notably Action No. 3195/78.

I shall now proceed to deal with the principles of law relating to the matter which, I am happy to say, do justice in the case in favour of the applicant. I have to state verbatim Sections 73 and 74 from Part VII of our Civil Procedure Law Cap. 6.

“73. Where the judgment debtor is beneficially interested in any money, securities for money, goods or other movable property in the custody or under the control of any other person in Cyprus, or where such other person is indebted to the judgment debtor, a writ of attachment. calling on such other person to appear before the Court and be examined touching the property [*288] in his hands which is mentioned in the writ, and directing him not to part with the custody thereof in the meantime, may be issued at any time after judgment on the application of the judgment creditor. The writ shall render, the property of the judgment debtor which is in the hands of such other person answerable as hereinafter mentioned for the satisfaction of the judgment debt.

74. The writ shall be served on the person thereby directed to appear before the Court; and from the time of the service thereof upon him, all money, securities from money, goods and movable property to which the judgment debtor is beneficially entitled whether solely or jointly with others, and which at the time of. the service of the writ, or at any time of the service of the writ, or at any time before it is dissolved, are or shall be in the custody or under the control of the person directed to appear, and all debts due or accruing due by him to the judgment debtor at or during that time shall, to the extent of the judgment debtor’s interest therein, and subject to any bona fide prior title thereto or lien or charge thereon, become securities in his hands for the satisfaction of the claim of the judgment creditor.”

Our law on the matter is quite different from that obtained in England where the relevant Supreme Court [*289] Order is 45 rule 1. In England at the time of .service of the order there must be a debt accruing to the judgment debtor. It has been held that the word “accruing” means a debt existing at the time of service although it may be payable at some future date.

Lord Goddard, C J. said the following in the case of Dunlop & Ranken, Ltd. v. Hendall (1957) 3 All E.R. 344 at page 346:

It is well known that garnishee proceedings, that is to say, execution by way of attachment for debts, only apply where there is a debt which is due or accruing due though it may not be immediately payable.

Lord Goddard then referred to the case of O’Driscoll v. Manchester Insurance Committee (1) ((1915), 113 L.T.683 at p. 688) where Bankes, L.J. said the following:

It has long been established that the expression a debt owing or accruing includes a debt debitum in praesenti solvendum in futuro. The question which has to be considered in deciding whether any particular debt fulfils the description of a debt owing or accruing is well put at p. 808 of the ANNUAL PRACTICE, 1915, where the author says:‘ But the distinction must be borne in mind between the case where there is an

existing debt payment whereof is deferred and the case where both the debt and [*290] the payment rest in the future. In

-the former-case there is an attachable debt; in the latter case there is not’. A case of the latter kind is where the amount is payable upon some contingency, and there it is not possible to say that there is a debt owing or accruing. But the mere fact that the exact amount of the debt has not. been ascertained is no answer to the contention that there is a debt debitum in praesenti.

Relevant on this matter is also the case of Heppenstall v. Jackson (1939) 2 All E.R. 10 where the Court of Appeal in allowing the appeal held that the words ‘any debt owing or accruing’ have been interpreted in a long line of decisions to mean that a garnishee order attaches no debt which did not exist at the moment when the order is made and served but only a debt existing at the time of service although it may be payable at some future time.

In my judgment our law is entirely different on the matter and this becomes clear from the provisions of Section 74 of ourCivil Procedure Law, Cap. 6 and particularly from the following words to which I lay emphasis.

……and which at the time of the service of the writ, or at any time, before it is dissolved, are or shall be in the custody or under the control of the person directed to appear, and all debts due or accruing due by him to the judgment [*291] debtor at or during that time shall, etc….

The important situation created by Section 74.is the following: when the order is served on the garnishee and the writ is not subsequently dissolved any money held by him and belonging to the judgment debtor Or accruing to him before the dissolution of the writ is attachable, that is, the essence of the matter is that not only debts existing at the time of the service of the writ are attachable but also all others accruing to the garnishee if such debts have accrued before the dissolution of the writ.

The Court has a wide discretion in the matter to deal with an application of this kind so that justice may be done. This can be seen from the case of George Lee & Sons (Builders) Ltd. v. Olink (1972) 1 All E.R. 360 where the Court had made an elaborate order to meet the end of justice in the case. That is what I intend to do in the case in hand.

In view of the fact that no attachable property existed in the hands of the garnishee when service was effected on him on 19.2.78 and since the matter in action No. 3195/78 has not as yet been adjudicated upon, I shall not dissolve the writ. This will remain pending until the above action is completed and an order is hereby made that the beneficial interest, if any, of the judgment debtor in the above action is attached in the [*292] hands

of the garnishee, the administrator, who is commanded to pay it over to the applicant to the extent of the sum standing to

his credit pursuant to the judgment obtained in his favour.

As I have said earlier on the garnishee does not seem to me to be a trustworthy person. The applicant has a

substantial interest in the administration of the, property of the deceased in view of my order. I therefore direct that if he applies to

be appointed as a joint administrator in the property of the late Chrysoulla HadjiPandela such application to be granted for the sole purpose of watching his interests in action No. 3175/78. The garnishee shall pay the costs of this application.

Before concluding I feel it my duty to observe that the police, acting of course on the instructions of the Attorney General, may examine whether Forgery has been committed in respect to the making of exhibit 2 and in particular its purported date of signing Order made accordingly.

Order accordingly.