A litigant who declines to lead evidence cannot demand a trial in appeal.

The Appellant, a judgment creditor, had obtained a decree dated 20 August 2014 against Respondent Nos. 1–5 for ₹3,76,85,654 together with interest at 18% per annum.

In execution proceedings, the Appellant sought to recover ₹4,00,36,551 from Respondent No. 6, the garnishee and mother of Respondent No. 2, alleging that Respondent No. 2 had advanced a loan to her and that the debt was available for attachment under the garnishee procedure.

The Appellant alleged that the loan had been fraudulently written off on 1 April 2014, shortly after the conditional leave order dated 6 March 2014, to defeat the Appellant’s claim.

The learned Single Judge dismissed the Chamber Summons. In the appeal, the Division Bench noted that the Appellant had expressly elected to argue the matter on documents alone and had declined to lead evidence.

Whether the Appellant was entitled to a garnishee order against Respondent No. 6 on the basis that a debt was due from the garnishee to Respondent No. 2, the judgment debtor, on the relevant date.

Whether, in view of the alleged contradictions concerning the writing-off of the loan, the learned Single Judge was required to frame an issue and relegate the parties to a trial.

Whether the Appellant, having elected not to lead evidence before the learned Single Judge, could seek a trial for the first time in appeal.

The Court proceeded on the principles governing garnishee proceedings under Order XXI Rule 46 of the Code of Civil Procedure, 1908, under which the Court must determine whether a debt is due or payable by the garnishee to the judgment debtor.

The Appellant relied on Jatin Keshruwala v. Dag Creative Media, 2019 SCC OnLine Bom 1346, for the proposition that the Court must ascertain whether the garnishee was actually indebted to the judgment debtor.

The decisions in Global Trust Bank v. Fargo Freight Ltd., AIR 2002 Del 13, and Mackinnon Mackenzie & Co. Pvt. Ltd. v. Anil Kumar Sen, AIR 1975 Cal 150, were cited for the principle that a bona fide and non-frivolous dispute in garnishee proceedings may require trial, garnishee proceedings being analogous in this respect to proceedings under Order XII Rule 6 CPC.

However, the Court applied the rule that a party who had an adequate opportunity to lead evidence before the first court, but elected not to do so, cannot subsequently raise an evidentiary plea in appeal, as stated by the Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, particularly paragraph 39.

The Division Bench held that the Appellant’s challenge could not succeed because he had expressly represented before the learned Single Judge that the matter could be decided on the existing documents and that no evidence was necessary.

Having made that election, the Appellant could not later contend that the alleged discrepancies in the income-tax returns, affidavits, and the asserted writing-off of the loan required a full trial.

The Court treated the concession as binding and applied Union of India v. Ibrahim Uddin to reject the attempt to introduce an evidentiary contention at the appellate stage.

Consequently, the principles in Global Trust Bank and Mackinnon Mackenzie, concerning trial of a bona fide garnishee dispute, were held inapplicable because the Appellant had itself chosen not to lead evidence.

The learned Single Judge’s assessment of the documentary record and dismissal of the garnishee application therefore did not warrant appellate interference.

The appeal was accordingly dismissed with no order as to costs.

The Interim Application was disposed of as infructuous, and the subsequent request for stay of the judgment was rejected.