CIVIL PROCEDURE CODE

Analytical study on garnishee order under civil procedure code : a critical

analysis

Submitted to:

DR. Pankaj Umbarkar

Assistant Professor

Hidayatullah National Law University, Raipur

Submitted by:

Srikant Sirka

Roll No. 168, Semester IX, Section A

Batch ID: 017/2017/1732

Hidayatullah National Law University

Sector 40, Uparwara, Nava Raipur Atal Nagar, Raipur Chhattisgarh 492002, India
 INTRODUCTION

“The word Garnish has been derived from an old French word Garnir which generally aims to
warn or to prepare. The word Garnishee means a person who is debtor to the judgment debtor or
against whom a decree has been passed. He is a person on record in the court of law who is
responsible or liable to pay the debts to the judgment debtor and liable to deliver the possession
of any movable property. He is generally required to pay the debt and whose property has been
subjected to garnishment.

This garnishee order by the competent court of law is passed at the time of execution of a decree.
In this order, the court of competent jurisdiction makes the third party liable to pay the amount,
who possesses money in hands or any movable property which is attached by the court. It involves
the provision in which the court warns or garnishment the third party, not to pay the debt amount
directly to the judgment debtor or whom against decree has been passed but to pay the money and
appear before the plaintiff creditor’s suit in the court.”

Garnisher is a decree-holder or creditor who initiates and introduces the garnishment action for
his own benefit to reach out the judgment debtor’s property which is in possession or held by the
third party or garnishee. “Here, the court in the case of debt which is attached under Civil
Procedure Code, 1908 Rule 46 of Order 21, other than the debt secured by charge or mortgage,
upon the application issued by the decree-holder, compels the garnishee to pay the debt either to
the court directly or satisfy the debt amount and cost of the execution of the decree and if he is
unable to do so, then he needs to show cause in the court of law that why he should not do so.
Suppose, A owes B Rs. 2000/’-, A refuses to repay the amount to B and B sues A. He obtains a
decree in his favour. Here, B is a Judgment Creditor and A is Judgment Debtor. B comes to know
that A has some money in a bank account and would like to have his decree satisfied by attaching
it in the hands of A’s bank. For this purpose, he approaches a court and obtains a garnishee order
attaching the fund at the bank standing to the credit of A.”

Meaning of garnishee order

A garnishee order is issued by the court of law to the third party in a suit, compelling him to pay
a certain amount directly to the creditor instead of paying it to the debtor. A garnishee order is
always beneficial to the creditor as it protects him from the loss due to unavailability of funds with
the judgment debtor. “It acts as an alternative mechanism of receiving the unpaid amount from
the debtor if he fails to provide the same within the stipulated time as mentioned in the contract
between the parties. A garnishee order can be made by the court to the financial institutions or
banks to pay the debt amount directly to the creditor instead of paying it to the principal debtor.”

Research Objectives:

 To understand the meaning of garnishee

 To understand the meaning of a provision of garnishee
 To analyse the element of garnishee

Research Questions:

1. What do we mean by garnishee?

2. Statutory provisons of garnsishee?
3. Powers and scope of court ?

Methodology:

The research work has been done using the descriptive methodology and the same is doctrinal
and analytical in nature.
As to the source of the study, second hand data has been taken into account. The necessary
information has been gathered from published sources such as books, Journals, Articles,
Newspapers, Magazines, etc.
 DISCUSSION/ANALYSIS

Mode of execution of the decree

“A garnishee order is also considered as one of the most important modes of execution of the
decree by the court of law. There are various types of mode available for the execution of the
decree and the court has certain powers to grant decree according to the facts and circumstances
of the case prevailing at that time. In various decrees, specific relief is provided by the court in
the interest of the parties.

The executing court plays a very important role in the execution of the decree. The executing
court has the power to give an order of arrest and imprisonment of a party whom against an
order or decree has been passed. A provision of an order which includes the garnishee also
plays a vital role in the execution of the decree by the executing court. The garnishee is a third
party who has certain debts of the judgment debtor or he is under the liability to pay the
immovable property in the favour of the judgment debtor.”

In the case of Krishna Singh v. Mathura Ahir1 , the Supreme Court held that there are certain
conditions needed to fulfil for the execution of a decree and the court can grant decree in the
favour or against the party according to the situation of the case. Thus, a garnishee order is an
important and significant role in the execution of a decree.

Reasons and objectives

“The primary reason and objective behind garnishee orders are to protect the interest of the
judgment creditor or decree-holder. Its objective is to make debt due to the judgment debtor
directly available to the judgment creditor or decree-holder in the execution of the suit through
the court of law without driving him to the suit. Order 21 rule 46 A of the code provides that
if a debt is due to principal debtor or a party whom against decree has been passed then it must
be directly paid to the decree-holder by the order of the executing court to avoid the multiplicity
of the suit in the Indian judiciary.

1
1980 AIR 707
The reason for such order by the court is clear that to protect the interest of both the parties.
But this order can only be passed if the amount of the decree satisfies and cost of execution.
The main purpose behind this order is to pay the amount to the decree-holder instead of the
judgment debtor and discharge the liability of the garnishee. Thus, this rule inserted by
amendment of 1976 plays a very vital role in the execution of the decree and considered as one
of the most important factors in discharging the debt of the garnishee.”

“Therefore, the order passed by the court of law is beneficial for the purpose of execution of a
decree and discharges the liability of the third party as well. The due amount is directly paid to
the decree-holder by the court to avoid the delay in the execution process and led to an effective
and efficient judicial system in the country.”

Powers of the court and scope of order 46 A

“The competent court of law has been granted immense power which is discretionary in nature
to pass Garnishee order so that it can benefit the decree-holder and act as a settlement of debt
between the parties. It is generally passed by the court to protect the interest of the decree-
holder and settle the debt between the principal debtor and garnishee.

It is an order and power of the executing court to attach the property and money of the party
whom against decree has been passed by the court in the hands of the third person. It is an
immense opportunity available to the judgment creditor and court authorizes the third party for
the payment of amounts. An order is being served by the court of competent jurisdiction to
prohibit the garnishee to transfer the amount and property to the judgment debtor and asked
him to appear before the court of law.

Order 21 Rule 46 A has been inserted in the Code of Civil Procedure, 1908 by the amendment
of 1976 and gives discretionary powers to the court to pass an order compelling garnishee not
to pay a certain amount directly to the judgment debtor to protect the interest of the judgment
creditor. Prior to the amendment, the court had no power to grant an order to the garnishee to
pay the debt in the court of law. It was not allowed to call upon the third party to pay a certain
debt in the court of law and give it to the judgment creditor.”

The order contained under Rule 46 A that is garnishee order is discretionary in nature and the
court has the power to refuse such order if it is not equitable and justifiable in the court of law.
But this power of the court must be justifiable equally and judicially. If the debt to the judgment
debtor is based on certain contingencies then this order cannot be passed by the court unless
these contingencies have taken place.

“This Code provides a provision under Order 46 A that a notice must be served upon the
garnishee before passing a garnishee order against him. If the garnishee has not been given
reasonable time and opportunity to hear before passing an order against him then the order shall
be considered to be null and void in the eyes of the law. According to the provisions of the
code, such an order does not possess any evident value and would be considered to be void and
is against the principle of natural justice. Further, it is observed that a garnishee order can only
be passed against the garnishee if the judgment debtor has the right to recover the debt against
him”

“In the case of Kazim Jawaz Jung v. Mir Mohammad Ali Jafari and Anr.2 , the court held
that where a judgment debtor has no right to claim the debt amount from the garnishee then
decree-holder has no right to recover the amount from him. it was held that money in the hands
of a garnishee which is payable to the judgment-debtor only in certain contingencies cannot be
recovered by the decree-holder.”

“In the case of Syndicate Bank v. Vijay Kumar3 , the court held that the bank can set off the
liability of the party and if the fixed property is attached to the bank garnishee has to go to the
court. The balance amount shall be claiming to satisfy the decree. However, the bank has the
right to raise an objection before the court of law that no amount is due to the judgment debtor
and the bank is not liable to pay the due amount to the creditor.”

Statutory provisions and procedure

The court can exercise a power under Rule 46 A of the code, to attach the property or debt
under Rule 46 other than the mortgaged property and issue a notice to the third party i.e.,
garnishee liable to pay such debt to the judgment creditor. But there must be certain conditions

2
AIR 1992 SC 1066
3
AIR 1972 AP 70
which need to be fulfilled for passing an order that the debt due to the judgment debtor must
satisfy the decree and cost of its execution.

“Rule 46 B of Order 21 provides that in case of garnishee not appearing before the court of law
and showing cause against the notice then the court may pass an execution decree. Such a
decree is considered to be in favour of the judgment debtor and against the garnishee. Such
decree by the court is based on the discretion of the court after analyzing all the circumstances
of the case.

Garnishee orders cannot be passed against the property or the court has no power to attach the
property which cannot be attached according to the provisions of the Code.” According to
the Rule 46 C of the Code, where the third party disputes his liability then it is the duty of the
court to make an issue and settle the liability of garnishee or third party and determine the debt
amount.

“In the case of Mackinnun Mackenzie & Co v. Anil Kumar4 , the court held that where the
garnishee disputes his liability, the court must raise an issue and determine the liability of the
garnishee. Where a court finds that the dispute between the parties is bona fide and not false
then the action cannot be taken under this rule of Order 21 of the Code.

In the case of Surinder Nath Kapoor v. Union of India5 , it was held by the Supreme Court
that Garnishee order is an immense power of the court and it is based on the principle of fairness
and used judicially according to the prevailing conditions.

According to Rule 46 D, if the court satisfies that the amount of debt and cost of execution is
settled then the debt of the garnishee can be discharged by the order of the court which protects
the interest of the garnishee. The Rule 46 F of the Code provides that payments made by the
garnishee are considered to be a valid discharge of debt against him. In the case of Food
Corporation of India v. Sukh Deo Prasad6 , the court observed that a garnishee can set off his
claim for the amount due to him by the judgment debtor.” The court further held that the
garnishee proceedings are governed by Rules 46 and 46 A to 46 F of order 21 of the Code and
the court may issue a notice to the garnishee liable to pay such debt, calling upon him either to
pay into court the debt due from the debtor or to appear and show cause why should not do so.

4
AIR 1975 Cal 150
5
1988 AIR 1777
6
2009
 CONCLUSION

“The Code of Civil Procedure provides for the provision of a garnishee order. Prior to the
amendment of 1976, there was no provision regarding the debit transfer. This order empowers
the court to pass an order against the third party to pay the due debt directly to the judgment
creditor instead of paying it to the judgment debtor. However, the power exercised by the court
of law is discretionary and it is upon the court to pass such order or not. It is not a mandatory
provision for the court while passing an execution decree. However, this power must be used
judicially by the competent court after looking at the prevailing condition and circumstances
of the case. The word ‘may’ is used in the statutory provision.

The garnishee or third party is responsible and liable to reveal about the liability dispute
between the parties. It is the duty of the garnishee to refuse to accept the debt before the court
of law. Afterwards, it is the duty of the court not to pass any such order against the party and
make the issue to determine the liability of the party in the case. If it is found that garnishee is
indebtedness to the judgment debtor then the court can pass such order against the party. The
court has no power to grant or issue any direction to other parties to pay the debt amount of the
judgment debtor if he is the usual financier of the judgment debtor. Court has no authority to
compel any party who is not holding any money to pay the amount to the decree-holder. The
court has an immense duty to pass an effective order and avoid misuse of this discretionary
power.

Thus, it is concluded by the author that garnishee order is one of the important aspects in the
Code to pass an order of execution of a decree. The author in this study talks about various
aspects, rules, procedure and statutory provisions regarding the garnishee order. There are
various minute aspects which are to be taken into consideration by the court while passing a
garnishee order. It is the duty of the court to pass effective order which should be beneficial for
the judgment creditor.”