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Garnishee Order

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65 views3 pages

Garnishee Order

Uploaded by

Khatib Malik
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Garnishee Order | 03 Oct 2023

Introduction

A Garnishee Order is an order issued by a court under the provisions of Rule 46 of Order
21 of the Code of Civil Procedure, 1908 (CPC).
This concept has been introduced by the CPC Amendment Act of 1976.
This term Garnish has been derived from the French word ‘garnir’ which means to
warn or to prepare.
The word Garnishee means a person who is debtor to the judgment debtor or
against whom a decree has been passed.
Section 2(10) of CPC defines a judgement debtor as any person against whom
a decree has been passed or an order capable of execution has been made.

Garnishee Order

A garnishee order is issued by the court of law to the third party in a suit, compelling
him to pay a certain amount directly to the creditor instead of paying it to the debtor.
A garnishee may be ordered by the court not to pay the debt to his creditor (i.e judgement
debtor) but to deposit the amount in the court. A garnishee order is thus an order
served on garnishee attaching a debt in his hand.
In the case of Krishna Singh v. Mathura Ahir (1980), the Supreme Court held that a
garnishee order plays an important and significant role in the execution of a decree.

Notice to garnishee

Rule 46A of Order 21 of CPC contains provisions regarding notice to garnishee. It states
that -
(1) The Court may in the case of a debt (other than a debt secured by a mortgage or a
charge) which has been attached under rule 46 upon the application of the
attaching creditor, issue notice to the garnishee liable to pay such debt, calling
upon him either to pay into Court the debt due from him to the judgment-debtor or
so much thereof as may be sufficient to satisfy the decree and costs of execution, or
to appear and show cause why he should not do so.
(2) An application under sub-rule (1) shall be made on affidavit verifying the facts
alleged and stating that in the belief of the deponent (a person who makes an
affidavit under oath), the garnishee is indebted to the judgment-debtor.
(3) Where the garnishee pays in the Court the amount due from him to the
judgment-debtor or so much thereof as is sufficient to satisfy the decree and the
costs of the execution, the Court may direct that the amount may be paid to the
decree-holder towards satisfaction of the decree and costs of the execution.

Notice Against Garnishee

Rule 46B of Order 21 of CPC deals with the provisions of notice against garnishee. It
states that -
Where the garnishee does not forthwith pay into Court the amount due from
him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree
and the costs of execution, and does not appear and show cause in answer to the
notice, the Court may order the garnishee to comply with the terms of such
notice, and on such order, execution may issue as though such order were a decree
against him.

Trial of Disputed Questions

Rule 46C of Order 21 of CPC deals with the trial of disputed question. It states that-
Where the garnishee disputes liability, the Court may order that any issue of
question necessary for the determination of liability shall be tried as if it were an
issue in a suit, and upon the determination of such issue, shall make such order
or orders as it deems fit.
Provided that if the debt in respect of which the application under rule 46A is made
is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the
Court shall send the execution case to the Court of the District Judge to which
the said Court is subordinate, and thereupon the Court of the District Judge or any
other competent Court to which it may be transferred by the District Judge shall deal
with it in the same manner as if the case had been originally instituted in that Court.

Procedure Where Debt Belongs to Third person

Rule 46D of Order 21 of CPC deals with the procedure where debt belongs to third
person. It states that —
Where it is suggested or appears to be probable that the debt belongs to some
third person, or that any third person has a lien or charge on, or other interest
in such debt, the Court may order such third person to appear and state the
nature and particulars of his claim, if any, to such debt and prove the same.
In the case of Food Corporation of India v. Sukh Deo Prasad (2009), the Supreme Court
observed that a garnishee can set off his claim for the amount due to him by the
judgment debtor.

Payment by Garnishee to be Valid Discharge

Rule 46F of Order 21 of CPC deals with the payment by garnishee to be a valid discharge.
It states that —
Payment made by the garnishee on notice under rule 46A or under any such
order as aforesaid shall be a valid discharge to him as against the judgement-
debtor and any other person ordered to appear as aforesaid for the amount paid or
levied, although the decree in execution of which the application under rule 46A
was made, or the order passed in the proceedings on such application may be set
aside or reversed.

Ways of Stopping a Garnishee Order

Pay Full Debt

The principal debtor can prevent the court from passing a garnishee order if he pays the
full debt of the creditor on the time given by the court of law.
The court can extend the time to pay the debt to the creditor instead of passing
garnishee order. If payment is not made within the time specified by the court, then the
court has an absolute power to pass a garnishee order against him.

Alternative Repayment
The principal debtor can make certain arrangements with the creditor to pay back the
amount in an alternative way which is suitable to both the parties.
The arrangement between the principal debtor and the creditor regarding the due debt is
considered as the best way to avoid a garnishee order.
However, it is not compulsory for the creditor to accept the offer made by the debtor. It is
upon the discretion of the creditor to accept or reject the offer of arrangement or
settlement made by the debtor.

Pay by Instalments

The principal debtor has the power to approach before the court of law assuring to pay
the debt amount by instalments.
If the court accepts the application, the garnishee order will be terminated and the due
shall be paid by the debtor through the instalments.

Bankruptcy

On the declaration of bankruptcy, the provable unsecured debt is no longer payable, and
any garnishee orders related to unsecured debt will immediately cease.

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