Friday 5 June 2015

Garnishee order;



Garnishee order;                                                               By; Hafiz Muhammad Azeem advocate
1)      Word; The word ‘Garnish’ is derived from an old French word ‘garnir’ which means to warn or to prepare. It is to serve an heir with notice i.e. to warn of certain debts that must be paid before the person is entitled to receive property as an heir.

2)      Garnishee; means a judgment-debtor’s debtor. He is a person or institution that is indebted to another whose property has been subject to garnishment. He is a person who is liable to pay a debt to a judgment debtor or to deliver any movable property to him. A third person or party in whose hands money is attached by process of court; so called, because he had garnishment or warning, not to pay the money to the defendant, but to appear and answer to the plaintiff creditor’s suit .

3)      Garnisher; is a judgment-creditor (decree-holder) who initiates a garnishment action to reach the debtor’s property that is thought to be held or owed by a third party.

4)      A 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 a remedy available to any judgment creditor; this order may be made by the court to holders of funds (3rd party) that no payments are to make until the court authorizes them. The third party is known as garnishee and the court order is known as garnishee order.

5)      To whom issued; it is an order of court to attach money or goods belonging to the judgment debtor in the hands of a third person.

6)      Form of order; order must be in written form.

7)      Relevant provisions; Order 21 Rule 46. They lay down the procedure in garnishee cases.

8)      The purpose; of the order is to protect the interest of the creditors. 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 the defendant.

9)      Illustration; Suppose A owes Rs. 1000 to B and B owes Rs. 1000 to C. by a garnishee order the court may require A not pay money owed to him to B, but instead to Pay C, since B owes the said amount to C, who has obtained the order.

10)  The object; is to render the debt due by the debtor of the judgment debtor available in execution to the decree holder and not to drive him to a suit. The primary object of a garnishee order is to make the debt due by the debtor of the judgment debtor available to the decree holder in execution without driving him to the suit.

11)  Discretionary power of court; the order is discretionary and the court may refuse to pass such order if it is inequitable. The discretion, however, must be exercised judicially. Where the court finds that there is bona fide dispute against the claim and the dispute is not false or frivolous, it should not take action under this rule.

12)  Garnishee Proceedings; Garnishment is a judicial proceeding in which a creditor asks the court to order a third party who is indebted to the debtor to turn over to the creditor any of the debtor’s property held by that third party. It is an inquisitorial proceeding, affording a harsh and extraordinary remedy. Garnishee proceedings are the proceedings are in rem as well as in personam. It operates on the person of the garnishee as on the debt. Therefore, it is classified as a proceeding quasi in rem.

13)  Payment; The court may, in the case of debt (other than a debt secured by a mortgage or charge), upon the application of the attaching creditor, issue a notice to garnishee liable to pay such debt, calling upon him either,

a)      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
b)      To appear and show cause why he should not do so.

14)  Status of payment; the payment made by the garnishee into the court pursuant to the notice shall be treated as a valid discharge to him as against the judgment debtor.

15)  Appeal; Orders passed in garnishee proceedings are appealable as Decrees.

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