Ansari Solicitor Firm

Power of the Indian Courts to Issue Garnishee Order

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.

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.

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.

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 an order of court to attach money or goods belonging to the judgment debtor in the hands of a third person. 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. 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.

Order 21 Rule 46 – A to 46 – I, have been newly inserted in the Code of Civil Procedure by the Amendment Act, 1976. They lay down the procedure in garnishee cases.

Rule 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 opportunity of hearing is not afforded before passing an order, the order would be null and void. In the eyes of the 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.

It empowers the court, in case the garnishee does not appear and show cause against the notice under R 46 A, to order him to comply with the terms of the notice and on such an order, execution may be issued. Such an order is to be deemed to be a decree against the garnishee and in favor of the judgment creditor. The further proceedings are in execution of that decree and against the garnishee36.

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