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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Explanation:

For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.

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Adjudication of claims and objections:

Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained—

(a) Where before the claim is preferred or objection is made, the property attached has already been sold; or

(b) Where the court considers that the claim or objection was designedly or unnecessarily delayed. [Order XXI, Rule 58(1)].

All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representative under this rule and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim and not by a separate suit. [Order XXI, Rule 58(2)].

Upon the determination of the questions referred to in sub-rule (2), the court shall, in accordance with such determination,—(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such orders as in the circumstances of the case it deems fit. [Order XXI, Rule 58(3)].

Where any claim or objection has been adjudicated upon under the rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. [Order XXI, Rule 58(4)].

Where a claim or an objection is preferred and the court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. [Order XXI, Rule 58(5)].

Where in the claim petition filed on behalf of the minor son by his stepmother claiming that the property attached in execution of the decree against the minor’s father belonged to the minor and not to the father, the stepmother who was appointed as guardian ad-litem of the minor acted against the interest of the minor in collusion with her husband and did not present the minor’s case properly in the claim proceedings, the order dismissing the claim petition would be void and not binding on the minor.

Therefore, the suit filed by the minor on attaining majority for declaration of title and possession of the property would be maintainable even though no suit under Order XXI, Rule 63 was filed within one year from the date of the order dismissing the claim petition.

Order XXI, Rule 58 has been discussed along with section 47 earlier and needs no reiteration.

Evidence to be adduced by claimant:

The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest, in, or was possessed of, the property attached.

Garnishee Order:

Garnishee means a judgment-debtor’s debtor. He is a person who is liable either to pay a debt to a judgment-debtor or to deliver or account for any movable property not in the possession of the judgment-debtor. The debt must be one other than a debt secured by a mortgage, a negotiable instrument, or a debt recoverable only in a revenue court.

A garnishee order is an order which a court is authorised to make against a garnishee (judgment-debtor’s debtor) requiring him to pay or deliver into court the amount due from or the property deliverable by him to the judgment-debtor or so much as may be sufficient to satisfy the decree and the cost of execution.

The court may in the .case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under Rule 46 (attachment of debt, share and other property not in possession of judgment-debtor) upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either 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 to appear and show cause why he should not do so. The application shall be made on affidavit verifying the fact alleged and stating that, in the belief of the deponent, the garnishee is indebted to the judgment-debtor.

Where the garnishee pays in the court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution. (Order XXI, Rule 46-A).

Where the garnishee does not forthwith pay into court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does not appear and show cause in answer to the notice, the court may order the garnishee to comply with the term of such notice, and on such order, execution may issue as though such order were a decree against him. (Order XXI, Rule 46-B).

Where the garnishee disputes liability, the court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue, shall make such order or orders as it deems fit. (Order XXI, Rule 46-C):

Provided that if the debt in respect of which the application under Rule 46-A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the court, the court shall send the execution case to the court of the District Judge to which they said court is subordinate, and thereupon the court of the District Judge shall deal with it in the same manner as if the case had been originally instituted in that court. (Proviso to Rule 46-C, Order XXI).

Procedure where debt belongs to third person:

Where it is suggested or appears to be probable that the debt belongs to some third person or that any third person has a lien or charge on, or other interest in, such debt, the court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same. (Order XXI, Rule 46-D).

After hearing such third person and any person or persons who may subsequently be ordered to appear, or where such third or other person or persons do not appear when ordered, the court may make such order as is hereinbefore provided, or such other order or orders upon such terms, if any, with respect to the lien, charge or interest, as the case may be, of such third person or persons, as it may deem fit and proper. (Order XXI, Rule 46-E).

Payment by garnishee to be valid discharge:

Payment made by the garnishee on notice under Rule 46-A or under any such order as aforesaid shall be a valid discharge to him as against the judgment-debtor and any other person ordered to appear as aforesaid for the amount paid or levied, although the decree in execution of which the application under Rule 46-A, was made, or the order passed in the proceeding on such application, may be set aside or reversed. (Order XXI, Rule 46-F).

The costs of any application made under Rule 46-A and any proceeding arising there from or incidental thereto, shall be in the discretion of the court.

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