Notice to Garnishee: Rule 46A-46 I

• 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.
• Order 21 Rule 46 A - 46 I have been inserted in the CPC by the Amendment Act, 1976. They lay down the procedure in
garnishee cases.
• Garnishee means a judgment-debtor's debtor/Third Party (Eg: Bank, Lessee). He is a person or institution that is indebted
to another whose property has been subject to garnishment.
• Garnisher is a judgment-creditor (DH ) 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 JD since
the latter is indebted to the Garnisher (DH).
• The primary object of R. 46A is to render the debt due by the debtor of the JD available in execution to the decree holder
& not to drive him to a suit.
• Suppose A owes B Rs 1,00,000/. A refuses to repay the amount to B & B sues A. He obtains a decree in his favor. Here B
is a judgment-creditor & A is the JD. B comes to know that A has some money in a bank account & would like to have
his decree satisfied by attaching the funds in the hands of A's bank. For this purpose he approaches a court & obtains a
Garnishee order attaching funds at the bank standing to the credit of A. In this e.g., A, is the garnishee and B is the
Garnisher (Person who initiates action).
• Suppose the husband & wife got divorced, & the husband was required in terms of a judgment to pay monthly
maintenance of Rs 5000 to his wife, but he failed to pay. The wife applied to court for a garnishee order, & the court
ordered the husband's lessee (of the husband's private property) to pay the rent of Rs 5000 to the wife instead of the
husband.
• The court may, in the case of debt (other than a debt secured by a mortgage or charge) which has been attached u/r 46,
upon the application of the attaching creditor, issue a notice to garnishee liable to pay such debt, calling upon him either
to pay into court the debt due from him to the JD or so much thereof as may be sufficient to satisfy the decree & costs of
execution, or to appear & show cause why he should not do so.
• The order contemplated by R.46 A is discretionary & 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 &
the dispute is not false or frivolous, it should not take action under this rule.

Precept:
• The concept of precept in CPC has significantly influenced the execution of decrees in the legal landscape. This legal
instrument empowers courts to issue directives to other competent courts, instructing them to attach the
property of JDs within their jurisdiction.
• By doing so, precepts in CPC prevent debtors from disposing of assets & safeguard the interests of decree-
holders.However, it is essential to understand that a precept does not initiate immediate execution but serves as a
preliminary step before formal execution proceedings.
• Ordinarily, the court responsible for executing the decree is the same court that passed it. However, certain situations may
arise where the court faces challenges executing the decree. For ex, the JD might not possess sufficient property within
the court’s jurisdiction to satisfy the decree, or the debtor could reside outside the court’s jurisdiction, making it
impossible to execute a warrant against their person.
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• Sec 46 empowers the Court to issue a precept to any other Court that is competent to execute the decree.
• The precept in CPC instructs the Court to attach any property of the JD specified in the precept that lies within its
jurisdiction.
• Once the Court receives the precept, it proceeds to attach the specified property following the prescribed procedures for
attachment of property during the execution of a decree.
• The attachment made by the Court, as per the precept, remains in effect for a period of 2 months unless the court
issuing the precept extends this duration.
• To clarify, an order of precept u/s 46 is primarily aimed at facilitating the execution of the decree, & it should not be
mistaken for a step in the actual execution proceedings itself.

Adjudication of Claims & Objections:

Where any property is attached in execution of a decree, parties, their representatives or third parties can raise objection
against such attachment.
If the objection is raised by a party or his representative, the question falls u/s 47 & should be decided by the executing
court & not by a separate suit.
If, on the other hand, such objection is raised by a third party, two modes are available.
I. Firstly, he may straightway file a suit claiming appropriate relief.
II. Secondly, he may file an application u/o 21 R.58 to the executing court.
Where the executing court entertains a claim or objection, it will hold a full fledged enquiry into the right, title & interest of
the claimant or objector and record a finding either upholding the claim or objection or rejecting it. The remedy available to
the aggrieved party is to prefer an appeal against the order and not to file a suit.

Sec 47 & O. 21 R. 58: DISTINCTION

Both Sec 47 & O.21 R.58 of the Code are similar in certain aspects. Both of them relate to execution proceedings. Both
enact that all questions covered by them should be decided by executing court. Both the provisions expressly bar filing of a
suit.
In spite of these similarities, there is essential distinction between the two;
- Whereas Sec 47 applies to parties to the suit (or their representatives), O.21 R.58 applies to third parties (or their
representatives).
- Sec 47 not only bars a suit but also bars an appeal. O. 21 R. 58 bars a suit but not an appeal. On the contrary, sub rule (4)
of Rule 58 expressly states that the order passed by the executing court "shall have the same force and be subject to the
same conditions as to appeal (or otherwise) as if it were a decree".
- Bar of suit u/s 47 is absolute & unqualified, while bar u/o 21, R. 58 is conditional & qualified.

Who May Apply:

Any person who at the time of attachment of property has some right, title or interest in or possessed of the property
attached, may lodge a claim or raise an objection against the attachment.

Where Application Lies?: A claim petition may be filed in the court which has attached the property. Where a special statute
confers exclusive jurisdiction on a particular court, a petition can only be filed in that court. Thus, in a case of claim by or
against a Bank in liquidation, a petition may be instituted in the HC under the Banking Regulation Act, 1949.
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Stay of Sale:R.59
Where before the claim was preferred or the objection was raised, the property attached has already been advertised for
sale, the Court may
• if the property is movable, postpone the sale; or
• if the property is immovable make an order that the property shall not be sold or that it may be sold but the sale shall not
be confirmed
Suit :
R. 58 (5)declares that where a claim preferred or objection raised is not entertained by the executing court on the ground
that
(i) the property was sold before the claim was preferred or objection was raised; or
(ii) claim or objection was designedly or unnecessarily delayed,
it is open to the aggrieved party to file a suit to establish his right.
Appeal:
An order passed by the executing court in adjudication of claims & objections shall have the same force & is subject to the
same conditions as to appeal or otherwise as if it were a decree.
Revision:
An order of adjudication passed u/r 58 of O. 21 is treated as "decree" & appealable. No revision, therefore, lies against such
order. But where the executing court refuses to entertain claim or objection against attachment of property under proviso to
sub rule (1) of R.58, an aggrieved party's remedy is to file a suit & not revision