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.

Nationality, domicile and citizenship

Nationality, domicile and citizenship

1)      Nationality:

a.      Means;

The term nationality in law signifies the status of an individual belonging to a particular state.

b.      Definition;

Fenwick defines it as a bond which unites a person to a given state which constitutes his membership in the particular state, which gives him a claim to the protection of that state and which subjects him to the obligation created by the laws of that state.

The basis of nationality is the membership of a particular community.

c.       International importance of the nationality;

Nationality is often determined by the state laws. It is a link through which an individual can enjoy the benefits of international law.

Starke state its importance as under;

1)      Protection of rights of diplomatic agents

2)      Prevention of offences

3)      Loyalty to particular state

4)      State can refuse to extradite its own nationals

5)      Enemy character is determined on the basis of nationality

6)      Jurisdiction of state over their nationals

d.      Modes of acquisition and loss of nationality;

a)      Acquisition of nationality

1.      By birth;

That is nationality is conferred at birth by the fact either of birth within the state territory (jus soli) or by the descent from, one of its nationals (jus sanguinis).

According to jus soli the birth occurs is the decisive factor and according to the jus sanguinins and the parentage.

2.       By naturalization;

It may take place by means of marriage, legitimization, option, domicile, or appointment as government officials and on the application.

According to the keelson;

Naturalization is the administrative fact of the state conferring citizenship upon alien.

3.      By registration of resumption;

Those individuals who were natural born subjects of the state but who lost their original nationality on account of some cause may get back it on fulfilling certain conditions.

4.      By descent;

It is on the basis of nationality of parents, this is also known as jus sanguinins.

UK and USA also recognize this principle.

5.       By subjugation;

A person may acquire nationality through subjugation after the conquest. When the part of a state is subjugated by another state the inhabitants of that state become the nationals of the later state.

6.       By cession;

When a part of the state is ceded, all nationals of the former state become nationals of the later state.

b)     Loss of nationality

1.      By release;

For it, it is necessary to submit an application for the loss of nationality by release.

2.      By deprivation;

Some laws of the state, provides that if a national of its state seeks employment of government of another state without its permission, he will be deprived of his nationality.

3.      Long  residence abroad;

State laws of many states contain provisions in this connection that if a person resides for a long period abroad, his nationality ends.

4.      By renunciation;

When a person acquires a nationality of more than one state, he have to renounce his nationality of one state.

5.      Substitution;

As to this principle, a person may get nationality of state in place of the nationality of another state, and whereby he loses his nationality of one state and acquires the other state.

2)      Citizenship:

The word citizenship is often used in municipal law.

Definition;

Generally the national who enjoys full political and civil rights is called a citizen.

It also means the state of being a native of a city and enjoying the freedom and privileges of the city, in which he resides.

It is intimately connected with the civil rights.

Refer:

It refers to the political status of a person.

3)      Difference between nationality and citizenship:

There is a great difference between nationality and citizenship.

·         By nationality we mean that legal relationship which exists between the nation and the individual, on the other hand, citizenship denotes the relationship between the person and the state law.

·         By nationality the civil and natural rights of a person may come under international law and by citizenship it is the sole concern of the state law.

·         It is possible that all the citizens may possess the nationality of a particular state, but it is not possible that all the nationals may be the citizens of that particular state.

·         Citizens possess full political rights in a state, but a national may not possess such rights.

4)      Domicile:

Mean and Definition;

Domicile is an attribute of nationality and denotes a person’s place of residence.

And,

It is the relationship between the individual and locality, where he has his permanent home.

5)      Difference between nationality and domicile:

·         Domicile denotes the residence of the person, while nationality denotes relationship of man with his nation.

·         Consequently a person may acquire nationality through domicile.

6)      Difference between domicile and citizenship:

·         Citizenship has reference to the political status of a person and,

·         Domicile to his civil rights.

7)      Conclusion:

So, by through the above mentioned writings it is clearly understandable the three terms, nationality, domicile and the citizenship and not same as often a laymen consider these are same.

A student of law must not have these confusions in his mind. And at the end I would like to quote;

Law must be on the sleeves of a Lawyer