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.
