A party who elects to proceed without evidence cannot seek a trial on appeal.

The Appellant, a judgment creditor, obtained a decree dated 20 August 2014 against Respondent Nos. 1–5 for ₹3,76,85,654 with interest at 18% per annum. The decree followed the Respondent’s failure to comply with the condition imposed for leave to defend the Summary Suit, even after the appellate court reduced the required deposit to 25% of the principal amount.

In execution proceedings, the Appellant sought recovery of approximately ₹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 remained payable on the relevant dates. Respondent No. 2 subsequently claimed that the loan had been written off on 1 April 2014, shortly after the conditional leave order dated 6 March 2014.

The Appellant relied on inconsistencies in the parties’ disclosure affidavits and income-tax records, contending that the loan had earlier been shown as outstanding and that the alleged write-off was fraudulent and intended to defeat execution. The Appellant urged that the issue should be tried by framing an issue and permitting evidence.

The learned Single Judge dismissed the Chamber Summons. In appeal, the Division Bench held that the Appellant had expressly elected to proceed on documents without leading evidence.

1. Whether the Appellant was entitled to seek a trial and framing of an issue regarding the alleged debt owed by the garnishee to the judgment debtor, despite having elected before the learned Single Judge to rely solely on documentary material and not lead evidence?

2. Whether the order dismissing the Appellant’s garnishee application warranted interference in appeal?

Garnishee proceedings under Order XXI Rule 46 of the Code of Civil Procedure, 1908 require the court to determine whether a debt is actually due and payable by the garnishee to the judgment debtor; where a bona fide and substantial dispute exists, the matter may be tried like a suit, as recognised in Jatin Keshruwala v. Dag Creative Media, Global Trust Bank v. Fargo Freight Ltd., and Mackinnon Mackenzie & Co. Pvt. Ltd. v. Anil Kumar Sen.

However, a party who has had a full opportunity to lead evidence and has elected not to do so cannot raise an evidentiary plea for the first time in appeal. The Court applied the principle stated by the Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, particularly paragraph 39.

A party’s concession or election before the court is binding and prevents it from subsequently resiling from that position.

The Division Bench noted that the Appellant had argued before the learned Single Judge that no evidence was necessary and that the alleged write-off could be determined solely from the admitted documents and surrounding circumstances.

Having adopted that position, the Appellant could not subsequently contend in appeal that the matter required a trial because the transaction appeared suspicious.

The learned Single Judge had considered the disclosure affidavits, income-tax records, and the assertion that the loan had been written off, and had dismissed the application on the documentary record.

Applying Ibrahim Uddin, the Division Bench held that the Appellant’s prior election not to lead evidence was binding. Consequently, the authorities concerning trial of disputed garnishee claims did not assist the Appellant because the procedural basis for seeking such a trial had been expressly abandoned.

The order dismissing the garnishee application was upheld, and the Appeal was dismissed with no order as to costs.

The Interim Application was disposed of as infructuous, and the request to stay the judgment pending further challenge before the Supreme Court was rejected.