The concept of 'Garnishment' has been introduced in
civil procedure code by the amendment Act, 1976 and is a remarkable
piece of legislation. This term has been derived from the French
word 'garnir' which means to warn or to prepare. In simple
words the garnishee is the person who is liable to pay a debt to a
debt to judgment debtor or to deliver any movable property to him.
Besides Judgment Debtor and decree Holder, Garnishee is a third
person in whose hands debt of the judgment debtor is kept.
Garnishee Order is an order passed by an executing court
directing or ordering a garnishee not to pay money to judgment
debtor since the latter is indebted to the garnisher (decree
holder). It is an Order of the court to attach money or Goods
belonging to the judgment debtor in the hands of a third person.
The third party is known as 'Garnishee' and the court's
order is known as Garnishee Order. It is a remedy available to the
Decree holder. This Order may be made by the Order of the court to
holders of funds, i.e. a third party that no payments have to be
made until the court authorizes them. The purpose of the Order is
to protect the interest of the Decree holder. This is an Order
served upon a garnishee requiring him not to pay or deliver the
money or property of the debtor (defendant) to him and/or requiring
him to appear in the court and answer to the suit of the plaintiff
to the extent of the liability to defendant.
The power of the court enshrined under Rule 46A to issue court
notice, is discretionary and the court may refuse to pass such
Order if it is Inequitable and the court apprehends that it can
cause prejudice to the garnishee, or that the grounds of the
application seeking that remedy is not sufficient or if the
affidavit is filed by decree holder is frivolous or ambiguous, etc.
The discretion, however, must be exercised judicially. Where the
court finds that there is bonafide dispute against the claim and
the dispute is not false or frivolous, it should not take action
under this rule.
The executing Court has been given power to recover any of the
amounts of the judgment debtor, which is in the hands of other. The
rule of 46 A requires a notice to be issued to a garnishee before a
garnishee order is passed against him. If such notice is not issued
and an opportunity of hearing is not provided by the court, the
order would be null and void. In the eyes of law, there is no
existence of such an order and any step taken pursuant to or an in
enforcement of such an order would also be void. The object of this
rule is to render debt due by the debtor of the judgment debtor
available in execution to the decree holder and not to drive him to
a suit. It applies to a debt, other than a debt secured by a
mortgage or a Charge, which has been attached under rule 46.
Prior to this amendment in 1976, there was no provision relating
to garnishee order in the code of civil procedure, 1908. After
insertion of this amendment, a direct provision was added to the
code of civil Procedure, which empowers the court to issue such an
order on the application duly filed. It is the discretionary power
of the court to issue a garnishee order and not a mandatory
Garnishee proceedings are the proceedings in rem as well as in
personam. It operates on the personam of the garnishee as on the
debt. Therefore it is classified as a proceeding quasi in rem.
Cheques cannot be attached under Order XXI Rule 46. It is attached
under O21 R46. It is attached under OXXI R51 relating to Negotiable
Instrument Act. Similarly contingent Debts can also not be
attached. The court has to use this power with caution thinking
properly and after being ensured that the case is prima facie and
that no innocent is harassed, otherwise the very purpose of the
legislation of providing the concerned remedy as discussed above
shall come to be at a stake.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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