P L D 1964 (W (PLP)

QADEERUDDIN AHMED, J.

‑This is a Letters Patent Appeal arising from the order of Muhammad Bachal, J., dated the 24th of February 1956, by which he ordered the appellant to deposit the amount that was formerly attached and to pay the costs of the proceedings in which the order was made.

2. The relevant facts are that respondent No. 1 filed a Suit No. 425 of 1951, against respondent No. 5 for the recovery of Rs. 2,00,007‑9‑9 and obtained an ex parte order of attachment before judgment against respondent No. 5 with a prohibitory order against the appellant restraining the appellant from paying the amount on the basis of the allegation that respondent No. 5 had that money in his account with the appellant. The order was confirmed after hearing the parties, virtually, in its original form, on the 27th of August 1951. In January 1952, it was discovered that the name in which the account of respondent No. 5 was held by the appellant was somewhat different from the name written in the plaint; therefore, the order was amplified on the 28th of January 1952. It was never vacated by the Court, but the appellant received an order purporting to be an order of this Court dated the 1st of December 1954, Exh. 2/2, containing the following material information:‑ "You the Garnishee above‑named are hereby informed that the monies of the defendant in your hands standing in the account styled 'Ismail Aditiyanawala' 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any one else on his behalf and cash cheques drawn on that account in your Bank; and that all the prohibitory orders are withdrawn hereby." Exh. 2/2 purported to bear the seal of the Court and the signature of an officer of the Court. On receipt of the order the appellant sent intimation of it to respondent No. 5, who issued instructions to the appellant to pay the money, with the result that the appellant sent a cheque on the 9th of December 1954, for Rs. one Jac to respondent No. 5, vide Exh.

31. This was all the money that the appellant held in the account of the respondent. Respondent No. 1 had no information of this payment. The suit of the respondent was decreed on the 29th of November 1955, who moved the Court for the execution of the decree and a notice was issued to the appellant, vide Exh. 3, dated the 7th of December 1955, calling upon it to deposit in Court the amount of Rs. 2,57,302‑11‑11 together with interest at the rate of six per cent. per annum on Rs. 2,00,007‑9‑9 from 4th of December 1955 to the date of deposit as well as the costs of the execution application. The appellant replied vide its letter, Exh. 5, dated the 10th of December 1955, that Rs. one lac which were in the account of respondent No. 5 were paid to the respondent on the 9th of December 1954, and sent a copy of Ex. 2/2 for information. The decree‑holder, therefore, made an application, dated the 12th of December 1955, pointing out in it that Exh. 2/2 was a forged document and void under section 64 of the Code of Civil Procedure and praying that the appellant be ordered "to immediately deposit in Court the money which was attached by the Court's order". The appellant submitted its objections in the form of an affidavit which was sworn by its sub‑Manager and was dated the 15th of December 1955. The deponent, inter alia, set out the procedure that was followed by the appellant on receipt of Court's orders and stated: "(11) That I have no personal recollection of the receipt of this particular order, nor for that matter of other orders as many orders are received by me from various Courts in the due course of business. (12) That from 25‑6‑52, a regular register is maintained by the Accountant in which all the Court orders, which are received, or duly entered immediately. (13) That from the entries upon the face and the reverse of the said order dated 1‑12‑54, it is clear that this order was initially received and date‑stamped by the Current Account Department and, according to the orders, passed on to the Accountant to be dealt with according to the procedure recited above. (14) That upon receipt of the order I made an entry on the said Order `C/A (Mr. Keeble). Received 9‑30 a.m. 3‑12‑54' and this writing is initialled by me. (20) I further state that there was nothing in the said order dated 1‑12‑54 which would lead me to suppose that it was anything but a genuine order of the Court, and there was nothing in the manner of the service of the said order which caused me to consider that there was anything wrong with the said order. (21) That the said order dated 1‑12‑54 bore the seal Court and I believed it to be the seal of the Court. There was nothing in the said order which could lead me to suppose that it was anything but a genuine order of the Chief Court of Sind. The Bank unhesitatingly obeys all orders of the Chief Court of Sind which are delivered to the Bank bearing the sea: of the Court. (28) That the process servers who come with the orders of the Court are never in uniform, as stated above, and the Bank always takes judicial notice of the seal of the Court. (29) That the Bank has in no way been negligent in acting upon the orders of the Court."

3. Issues were not framed on the pleadings of the parties, but evidence was taken in the form of affidavits of Mr. M. S. Bhutto whose signature was purported to have been affixed on Exh. 2/2; of Mr. G. Raymond who was the Official Assignee of this Court and was appointed to be the Receiver in another suit in which the decree‑holder firm was ordered to be dissolved; of Mr. C. D'Souza who was an Accountant of the appellant; of Mr. John Herbert Keeble who was the Chief of the Current Account Branch of the appellant and of Mr. Herbert George Beard, the Sub‑Manager of the appellant. They were cross‑examined, and Mr. M. S. Bhutto, inter alia, stated as follows:‑ "I see the signature on the release order dated 1‑12‑1954 and say that it is not mine and (that) there is a difference. There is no resemblance between my signature and this signature. In the release Order VI is separate from T and M is different from the first order. B is also different. I cannot say whether the impressions of the seals of Chief Court of different branches differ from each other . . . . . There was no record kept of the seals." Muhammad Bachal, J., heard counsel for the decree‑holder and the appellant, and made the order, against which this appeal has been preferred. The order contains a recital of the facts and deals with the following objections which were raised by Mr. Fazlur Rahman on behalf of the appellant: (a) The prohibitory order was of no effect because there was no debt due from the appellant, as the appellant had no obligation to pay any sum to the account‑holder without a demand from the latter and that such a demand ‑had not been made until the order. (b) The amount standing to the credit of the account holder in the books of the appellant was not a debt within the meaning of section 60 of C. P. C. and therefore it was neither a property nor therefore attachable. (c) The appellant had not paid the amount voluntarily; there fore, it was not hit by section 64 of C. P. C. These contentions were overruled by the learned Judge who came to the following conclusion:‑ Whether Mr. Bhutto forged it (Exh. 2/2) or not, and whether the banker acted in good faith is immaterial. In 14 Law Journal Equity (1845) ex parte Jolifee p. 134, the Bank was held liable to the customer when the Bank paid money under a forged probate presented by a third‑party. The contention raised must be repelled. The Bank to deposit the amount attached. Costs to be borne by the Bank.

4. This appeal has been contested only by Mr. Noorul Arifin on behalf the Official Assignees as the Receiver, who is respon dent No.

6. He represented the interest of the partners or the heirs of the deceased partners of the decree‑holder. The judgment debtor has remained absent, and we were told by counsel who were present before us that he has absconded after receiving the amount of Rs. one lac from the appellant. Counsel have further informed us that the police had commenced an inquiry into the forgery, but little progress has been made in that respect owing to the disappearance of respondent No. 5.

5. Mr. Fazlur Rahman, appearing on behalf of the appellant, repeated the arguments which he had advanced before the learned Single Judge, criticized the procedure which was adopted by the learned Judge and added that the second prohibitory order had superseded the previous one; but we have felt from the commencement of the hearing of this appeal that the most important aspect which needs examination is the existence or absence of any protection to those who act or orders which purport to be the orders of Courts and do not contain any indication on their face that they are forged. We requested learned counsel to enlighten us on this aspect of the matter because we thought that withholding such protection, if there is any available under law, could paralyze the administration of Courts and consequently the administration of justice. We have further felt the importance of weighing the consequences of the decision of this appeal on the rights of the appellant and the decree‑holder inasmuch as the decree‑holder, in all likelihood, stands to lose the entire amount if the appellant is not liable to pay it while, on the other hand, the appellant will have to pay the amount which was deposited with it twice over if the appeal is rejected. The second payment will be to a creditor of the same depositor who has already received the money in spite of the order of the Court to the contrary and his knowledge of its existence.

6. Mr. Fazlur Rahman has addressed brief arguments on the question of protection to those who act on orders which prima facie purport to be the orders of Courts; but before pro ceeding to deal with this aspect, we would like to dispose of his other arguments which have not impressed us as of much weight.

7. His first contention that no debt was due from the appellant as no demand had been made by the account‑holder is patently wrong, because the relationship between a banker and A its customer is that of a debtor and creditor, and the demand made by the Court is, by the operation of law, a substitute for the demand of the holder of the account. In this case, the appellant was prohibited from making payment to the account holder, which is a form of attachment under Order XXI, rule 46(1) of the Code of Civil Procedure. Counsel's contention that no debt was due and that, therefore, there was no valid attachment, with the result that the appellant was justified in paying off the debt, contains an underlying contradiction inasmuch as the excuse of the non‑existence of the debt was raised after recognising the debt as due and actually paying it off. The prohibitory order was in force at the time when the amount was paid as due and payable. The appellant was ordered not to pay anything out of the account to which the prohibitory order related, and cannot be heard to say that the entire B amount that stood in the account has been paid in spite of it. The order was obviously made in exercise of a jurisdiction which vested in the Court and had to be fully respected so long as it was not modified or vacated. If it was open to criticism from the point of view of any technicalities under Order XXI, rule 46(l), C. P. C. then it could not be treated as a nullity and floated. Those orders of the Court which may be erroneous but were not made without authority or jurisdiction can be questioned by a motion which is a very different stand from the erroneous conduct of disregarding them as of no value.

8. The second contention of Mr. Fazlur Rahman was a variation of the first contention because it was essentially founded on the, plea that no debt was due and payable at the time of the prohibitory order. It is unnecessary to examine it further.

9. His third contention misses the mark inasmuch as it presumes that the appellant had a right to treat the order that was conveyed to it vide Exh. 2/2 as a genuine order and to act on it. It is presumed in it that the action was taken compul sorily and not "privately" but this presumption is not valid unless the appellant can establish protection of law for the action taken by it on a forged order.

10. Counsel has criticized the procedure of taking evidence by submission of affidavits and then allowing the deponents to be cross‑examined. His real grievance was that issues were not framed with the result that the evidence did no directly related to predetermined points of dispute and became a mass of facts. It is true that such garnishee proceedings as these are to be elaborate under the relevant rules and framing of the issues is indicated; but counsel has failed to show that any necessary piece of evidence is missing from the record, that any prejudice has been caused to his client or that the omission at the outside is not a mere irregularity which is curable on the principle contained in section 99 of C. P. C.

11. His argument that the second prohibitory order had superseded the first one fell flat because the second order was all amplification of the first one. It did not take away anything from the prohibitory force of it.

12. We take up lastly the most important question involved in this case; namely, whether any 'protection exists for those who in good faith act on such forged orders as apparently purport to emanate from Courts and as to what is the extent of such protection? In this regard, let us state at the outset that the most important sign of the authenticity of a judicial document is its seal. It is not possible to conceive the effective administration of any Court of general and large jurisdiction without the existence and recognition of its seal. One of the first acts which the Federal Supreme Court of America is said to have done on its establishment was "to adopt a seal for itself and one for each of the Federal Circuit Courts". According to section 7 of the Chapter on Courts in Volume 14 of the American Jurisprudence there is ample authority for the view that there are three essentials of a Court of record, namely "a Judge, a clerk or prothonotary and a seal'. The importance of the seal is obvious because it is impossible for a Judge to personally convey orders to every individual who may be concerned with them and even where he could do so his own identity and authority outside the Court room would need authentication. This is why the seal of Court is not only the proof of its own authenticity but also of the authority conferred on the person who affixed it. Section 57(6) of the Evidence Act lays down that "the Court shall take judicial notice of the seals of all the Courts" of the country and section 56 of the Act provides that "no fact of which the Court shall take judicial notice need be proved". Illustration (e) to section 114 of the Acct explains that there is a presumption of regular performance in favour of all judicial and official acts. The total effect of these provisions is that a strong initial presumption of genuineness exists in favour of a document which purports to bear the seal of the Court and signature of an officer of the Court, although the presumption is rebuttable. It can be dislodged but the burden for doing so is on him who seeks to do so. This means that nobody is expected to look upon a document which on the face of it appears to duly bear the seal of the Court and the signature of an officer of the Court with suspicion and to act on his doubts unless he first reasonably assures himself of fair chances of disproving the presumption of genuineness. This expectation serves as the foundation of the public confidence which enables its members to readily obey judicial orders as well as the steel rails on which the processes of judicial administration smoothly move. It is neither wise nor legally supportable that this expectation be weakened or destroyed.

13. Three questions may arise here. Firstly, what is the protection that is enjoyed by a man who fulfils the above mentioned expectation; secondly, where does the expectation come to an end and, thirdly, will not an emphasis on such expectation and protection encourage the wicked to indulge in forging judicial documents. These questions can be answered together by briefly stating that the protection enjoyed by him is the same as can be claimed by an innocent man who is the victim of a fraud, with the super‑added consideration that lie has a right to rely on a seal which on the face of it appears to be the genuine seal of the Court and on the signature which excited no reasonable suspicion, as well as the consideration that attempts at the removal of doubts through Court is expensive, if always not without the chances of creating untoward complications it' delay is ultimately caused in obeying genuine orders. The law virtually says: trust the seal and the signature; therefore, h cannot begin with distrust unless there are circumstances or signs on the face of the document to excite genuine suspicion. When there are reasons for entertaining such a suspicion that is the end of his right of reliance on the seal and signature as well as of the protection available on the ground of fraud and deceit. The reason is not acceptance by the law of his initial distrust in the seal and signature but mainly that in such circumstances he cannot be said to have been really deceived. Even in such circumstances it is often not safe for him to make his decision and thereby to accept the responsibility of flouting an order of the Court, but to move the Court for clarification. This procedure provides a check both on the possible growth of public distrust in judicial documents and on the machinations of the wicked. It will be noticed that if there are no circumstances or signs to excite suspicion of forgery or deception then justice would not deny suitable protection to the victim and if this amounts to an encouragement to the deceitful to indulge in their practices then there is no check on them in the law relating to presumptions and to judicial notice. A good police administration to bring the wrong‑doers to book is the final answer.

14. Before proceeding to further examine the nature of the protection, we may reproduced here a few passages from the American Jurisprudence in which a summary of some relevant legal practices and considerations are set out conveniently. Sections 126 and 127 of the chapter on Process in Volume 42 deal with the conclusiveness and impeachment of the returns of judicial process. The following statements contained in them are useful :‑ "Under the common law of England it has been established from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false return is by an action against the sheriff on his official bond. In this country also the Courts in a number of jurisdictions adhere to the view that, ‑at least as to facts which it is the duty of the officer to state, his return is conclusive as between the parties and privies to the suit and others whose rights are necessarily dependent on it, and in the absence of fraud, it cannot be set aside on extrinsic evidence, unless its falsity is disclosed by some other portion of the record of the case. Under this rule, where an officer's return of service of summons is regular on its face, the truthfulness of the return cannot be controverted by the defendant in the same action by answer or otherwise before judgment, or by application after judgment on motion or other proceeding to have the judgment set aside." Further:‑ "The rule of conclusiveness of the sheriff's return, although tending to the security of the record, often imposes hardship, and many Courts have discarded the idea that such return must be accepted as verity, in favour of the more liberal rule that the return is only prima facie evidence of the facts therein stated, and may be impeached by competent extrinsic evidence in a direct proceeding. In those jurisdictions where the defendant is allowed to contradict the officer's return in the same action before judgment is rendered, he must proceed by motion or plea in abatement before pleading to the merits." Section 161 of the chapter on Fraud and Deceit, in Vol. 23 of the book deals with the responsibility, for making investigation, of the person to whom a false representation is made in his private dealings. It contains the following statement: "Where positive and distinct representations are made and where it has been held that there is no duty to investigate, negligence is not considered to palliate the fraud. Reasons given for so holding are that the law is not designed to protect the vigilant, or tolerably vigilant, alone, although it rather favours them, but is intended as a protection to even the foolishly credulous, as against the machinations of the designedly wicked; that a defrauded party does not owe to the one who defrauds him an obligation to use diligence to discover the fraud; that a man may recover damages for a fraud, although he did not exercise ordinary care and caution; that neglect or want of prudence on the part of the person defrauded cannot justify the falsehood or fraud of those who practice upon his credulity; and that the doctrine of contributory negligence cannot be invoked to save the representor from liability for misleading the recipient of his false statement

15. The above quotations indicate the great weight that is attached in England and America to the reliability of judicial process and the reasons as to why a person has a right to implicitly act on a positive representation that may be made to him even privately. In addition to this protection, reference can also be made to the protection that is enjoyed by a bona fide purchaser or transferee of property for consideration and without notice of a defect in the title of the seller or existence of prior equities in favour of others with reference to a property so transferred. See, for instance, section 29 of the Sale of Goods Act, 1930, sections 41, 58, 120, 121 and 122 of the Negotiable Instruments Act, 1881 and sections 43 and 53 of the Transfer of Property Act, 1882. According to Kerr on the law of Fraud and Mistake (seventh edition) at page 622: "The doctrine in regard to the effect of notice does not affect a title derived from another person, in whose hands it stood free from any such taint. A purchaser will not be affected by notice of an equitable claim if he purchased from a vendor who himself bought bona fide without notice. A bona fide purchaser for value without notice has a right to convey to a person even with notice any legal or equitable interest which he had acquired, and a person acquir ing such legal or equitable interest under such purchaser has a valid title to it. So, also, if a person who has notice sells to another who has no notice, and is also, a bona fide purchaser for valuable consideration, the latter may protect his title, although it was affected with the equity arising from notice in the hands of the person from whom he received it. A person affected by notice has the benefit of want of notice by inter mediate purchasers. The bona fide purchase of an estate for valuable consideration purges away the equity from the estate in the hands of all persons who may derive title under it, with the exception of the original party, whose conscience stands bound by the meditated fraud." further, at page 623: "Purchasers under a judgment of the Court take with notice of fraud apparent on the face of the judgment. But an order of the Court cannot as against a purchaser be invalidated on the ground of want of jurisdiction or of want of any con currence, consent, notice, or service, whether the purchaser has notice of any such want or not."

16. None of the above propositions and provisions of law, excepting for section 122 of the Negotiable Instruments Act, 1881, confer validity on a forged writing for transferring good title, not even section 41 of the Act because it is founded on the, consideration that he who has himself acted on a forged writing cannot take advantage of his wrong against others. Mr. Noorull Arfin has, therefore, argued that a forged document is a nullity and cannot be pleaded in support of an action taken on it. That is an argument which needs careful consideration, but before examining it we may mention that Muhammad Bachal, J., has ordered the appellant to deposit the attached amount on the basis of the judgment given ex parte in Jolife's case ((1845) 14 L J E 134), Smith v. Union Bank ((1875) 10 Q B 291) and Smith v. Union Bank of London ((1876) 1 Q B 31), which precedents, we respectfully think, do not support his conclusion. In the first case, W. Sanders obtained a probate on a forged will in the name of T. Hunt and succeeded in obtaining money from a bank which was ordered to pay the amount over again to the genuine executors on the ground that the payment was not made to T. Hunt but to W. Sanders. The brobate, though obtained on a forged will, was not treated as a nullity. The judgment given in the second case was confirmed in appeal which is the third case. Its facts are that a cheque which was endorsed by the payee and specially crossed by him was stolen, transferred for consideration and cashed by the transferee. The claim of the genuine payee against the bank was defeated because the trans feree was a bona fide holder of the cheque and the payee had no right of action as he had ceased to be the holder of that cheque. The false transfer made by the thief to the bona fide transferee was thus honoured.

17. The essential issue in this appeal thus is as to whether any value can be attached to Exh. 2/2 which is undoubtedly a forged document in the sense that it purports to convey an order which the Court had not made. The question as to whether the document could deceive the appellant was not considered by Muhammad Bachal, J., therefore, we have recorded the statement of Mr. Bhutto at the suggestion of Mr. Noorul Arifin with the consent of Mr. Fazlur Rahman. The witness has stated before us that the seal which it has on it looked like the seal of this Court. He had stated before Muhammad Bachal, J., that the signature which it bears was not his and that it differed from his ;genuine signatures. A request was made on behalf of the appellant to yet the questioned signature examined by a hand writing expert; but it was rejected by the learned Single Judge. A comparison mane by tile naked eye of the signature on Exh. 2/2 with the admitted signature on Exh. 2/1, which is a notice that was previously sent by this Court to the appellant, leaves no doubt that the appellant could reasonably accept the signature on Exh. 2/2 to be the signature of the witness. Mr. Noorul Arifin has placed no reliance on any difference between the seal and signature which appear on Exh. 2/2 and the genuine seal and signature, but has contended that the Serishtedar of this Court was authorised to sign the notice under rule 31(3) of the Sind Chief Court Rules (O. S.) and that Exh. 2/1 was signed by the witness as such when he held that office, but the designation that appears under the signature on Exh. 2/2 is that of the Nazir of the Court, therefore the appellant had reason to suspect the genuineness of the document and was put to inquiry. We may mention that the witness held the post of a Serishtedar when he signed Exh. 2/1 and that of the Nazir‑when Exh. 2/2 purports to have been issued. Irrespective of that, the rule does not say that a notice signed by a higher officer of the Court than the Serishtedar is invalid and of no value. If the notice was genuine 'and was disregarded by the addressee merely on the ground that the designation of the signatory was that of a Nazir, we do not think we would countenance disobedience. The entire argument therefore turns on the effect of actual forgery. It is unnecessary for us to decide as to whether Mr. Bhutto signed Exh. 2/2 or not and whether the seal on it is the genuine seal or not. That will be for the Criminal Court to decide. For the present purposes it is enough that Exh. 2/2 is a forged document inasmuch as it was served on the appellant without the authority of the Court though there is no conclusive reason for drawing the inference that the seal and signature on it are also false or forged.

18. Presuming, in view of what has been said in para graph 16 above, that as a general rule, a forged document cannot confer valid title, we may point out that conferment of title is not the point at issue in this case. What we have to consider is as to whether a forged order which on the face of it is genuine, is a good excuse for obeying it and whether its obedience can be visited with the penalty of repayment or not. We have no doubt that acceptance by the appellant of the order contained in Exh. 2/2 was justified. The seal of the Court is a sign of greatest authenticity; so much so that even if the appellant Bank moved g the Court to seek the confirmation of the order, it had ultimately to rely on a copy of the order of the Court authenticated by its seal. In this case, no title was conferred on the appellant in any property. The appellant has merely acted on the order and in good faith parted with money. The recipient of the money may acquire no title to it, but we do not see why the appellant should suffer for it. Additionally, we are very reluctant to encourage a situation in which the recipients of the orders of Court would be justified to hesitate and delay their obedience on imaginary doubts and for no apparently good reason. Further, the equities in this case do not favour the decree‑holder who demands satisfaction from a creditor of the liability of the person whose debt the creditor has discharged by paying the money to himself. The decree‑holder may not be able to get its claim satisfied owing to the present state of affairs but if, as pointed by Kerr in the above‑mentioned book at page 517 in connection with the effect of mistake on contract .no question of the possibility of restitution will affect the decision of the Court , the decision of this appeal should not be induced by that con sideration to penalise the innocent appellant for satisfying at its cost the liability of respondent No. 5 whose debt the appellant has already paid off. The appellant as well as the decree‑holder are equally innocent with respect to the money, but the claim o the decree‑holder against the appellant is through respondent No. 5 and not direct.

19. In view of the above equities, clear justification of the costs. A. H. Order set aside.