Civil Procedure Code 1908
ORDER XXI. EXECUTION OF DECREES AND ORDERS
ORDER XXI. EXECUTION OF DECREES AND ORDERS
Payment under decree
33. Discretion of Court in executing decrees for restitution of conjugal rights
(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree 1[against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree 2[shall be executed in the manner provided in this rule.]
(2) Where the Court has made an order under sub-rule (1) 3[* * *] it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payble under a decree for the payment of money.
1. Ins. by Act 29 of 1923, sec. 3
2. Subs. by Act 29 of 1923, sec. 3, for “shall not be executed by detention prison.”
3. The words “and the decree-holder is the wire” omitted by Act 29 of 1923, sec. 3.
34. Decree for execution of document, or endoresment of negotiable instrument
(1) Where a decree is for the execution of a document or for the endorsement for a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft,’his objections shall be stated in writing within such time, and the court shall make such order approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely :-
“CD., Judge of the Court of
(or as the case may be), for A.B. in suit by E.F. against A.B.”, and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
1[(6) (a) Where the registration of the document is required under any law for the t
ime being in force, the Court, or such officer of the court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b) Where the registration of the doucment is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration.]
1. Subs, by Act No. 104 of 1976 for sub-rule (6) (w.e.f. 1-2- 1977).
35. Decree for immovable property
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming the beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
HIGH COURT AMENDMENT
Madras.-In Order XXI, in rule 35, after sub-rule (3), insert the following as sub-rule, namely:-
“(4) Where delivery of possession of a house is to be given and it is found to be locked, orders of Court shall be taken for breaking open the lock for delivery of possession of the same to the decree-holder.
If it is found at the time of delivery that there are movables in the home to which the decree-holder has no claim and the judgment-debtor is absent, or if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value, in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the decree-holder after taking a bond from him for keeping the articles in safe-custody pending orders of Court for disposal of the same.
The officer shall then make a report to the Court and forward therewith the attested inventory taken by him.
The Court shall, thereupon, issue a notice to the judgment-debtor requiring him to take delivery of the said movable within thirty days from the date of the notice and in default they will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the Judgment-debtor:
Provided that if movable articles referred to above are perishable, the officer shall sell them in public auction immediately, and bring the proceeds into Court. The notice to the Judgment-debtor shall in such a case call upon him to receive the amount from Court within three months.” (w.e.f. 17-8-1966)
36. Decree for delivery of immovable property when in occupancy of tenant
Where a decree is for the deli
very of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. Arrest and detention in the civil prison
Arrest and detention in the civil prion
37. Discretionary power to permit judgment debtor to show cause against detention in prison
(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
1[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
HIGH COURT AMENDMENTS
Allahabad.-In Order XXI, in rule 37, in sub-rule (1), for the word “shall”, substitute the word “may” and omit the proviso.
[Vide Notification No. 43/IIM-29, dated 1st June, 1957.]
Patna.-In Order XXI, in rule 37, in sub-rule (1), for the word “shall”, substitute the word “may”, (w.e.f. 5-4-1961)
1. Ins. by Act 21 of 1936, sec. 3.
38. Warrant for arrest to direct judgment-debtor to be brought up
Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.
HIGH COURT AMENDMENTS
Andhra Pradesh.-Same as in Madras.
Karnataka.-In Order XXI, in rule 38, at the end, insert the words “or unless satisfaction of the decree be endorsed by the decree-holder on the warrant in the manner provided in sub-rule (3) of rule 25 of this Order”, (w.e.f. 30-3-1967)
Kerala.-Same as in Madras.
[Vide Notification No. Bl-3312/58, dated, 7th April, 1959.]
Madras.-In Order XXI, in rule 38, at the end, insert the words “or unless satisfaction of the decree be endorsed by the decree-holder on the warrant in the manner provided in rule 25(2) above”. (w.e.f. 30-3-1967)
39. Subsistence allowance
(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder into pays Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court.
(2) Where a judgment-debtor is committed to the civil prison in executio
n of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under section 57, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payments in advance before the first day of each month.
(4) The first payment shall be made to the proper officer of the Court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison, and the subsequent payments (if any) shall be made to the officer in charge of the civil prison.
(5) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison shall be deemed to be costs in the suit:
Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.
HIGH COURT AMENDMENTS
Allahabad.-In Order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison”.
[Vide Notification No. 4084/35{a)-3(7)/ dated 24th July, 1926.]
Andhra Pradesh.-Same as in Madras.
Bombay.-(i) In Order XXI, in rule 39, in sub-rule (1), at the end, insert the words “and for the cost of conveyance of the judgment-debtor from the place of his arrest to the Court-house”.
(ii) for sub-rules (4) and (5), substitute the following sub-rules, namely:- *
“(4) Such sum (if any) as the Judge thinks sufficient for the subsistence and costs of conveyance of the judgment-debtor for his journey from the Court-house to the civil prison and from the civil prison on his release, to his usual place of residence, together with the first of the payments in advance under sub-rule (3) for such portion of the current month as remain! unexpired, shall be paid to the proper officer of the Court before the judgment-debtor is committed to the civil prison, and the subsequent payments {if any) shall be paid to the officer in charge of the civil prison.
(5) Sums disbursed under this rule by the decree-holder for the substance and costs of conveyance (if any) of the judgment-debtor shall be deemed to be costs in the suit:
Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.”
Calcutta.-In Order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison”.
[Vide Notification No. 3516-G, dated 3rd February, 1933.]
Delhi.-Same as in Punjab.
Gauhati.-Same as in Calcutta.
Gujarat.-Same as in Bombay.
Himachal Pradesh.-Same as in Punjab.
Karnataka.-In Order XXI, in rule 39, for sub-rules (4) and (5), substitute sub-rules (4) and (5) as in Bombay (ii). (w.e.f. 30-3-1967)
Kerala.-In Order XXI, in rule 39, substitute sub-rules (4) and (5) as in Bombay (ii) without the proviso.
Madhya Pradesh.-Same as in Bombay (i) and (ii) without the proviso, (w.e.f. 16-9-1960)
Madras.-(i) In Order XXI, in rule 39, in sub-rule (1), at the end, insert the words “and for pa
yment of the charges for conveyance of the judgment-debtor by bus, train or otherwise whichever is available from the place of arrest to the Court-house”.
(ii) for sub-rules (4) and (5), substitute sub-rules (4) and (5) as in Bombay (ii) without the proviso.
Orissa.-Same as in Patna.
Patna.-In Order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison” in the first place where they occur.
Punjab.-In order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison”.
[Vide Notification No. 125-Gaz-XI-Y-14, dated 17th April, 1932.]
1[40. Proceedings on appearance of judgement-debtor in obedience to notice or after arrest
(1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison. i (2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or, release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of the Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.
1. Subs. by Act 21 of 1936, sec. 4, for rule 40.
HIGH COURT AMENDMENTS
Bombay.-In Order XXI, in rule 40, after sub-rule (5), insert the following sub-rules, namely:-
“(6) When a judgment-debtor is ordered to be detained in the custody of an officer of the Court under sub-rule (2) or the proviso to sub-rule (3) above, the Court may direct the decree-holder to deposit such amount as having regard to the specified or probable length of detention, will provide-
(a) for the subsistence of the judgment-debtor at the rate to which he is entitled under the scales fixed under section 57, and
(b) for the payment to the officer of the Court in whose custody the judgment-debtor is placed of such fees””(including lodging charges) in respect thereof as the Court may by order fix:
Provided (i) that the subsistence allowance and the fees payable to the officer of the Court shall not be recovered for more than one month at a time, and (ii) that the Court may fro
m time to time require the decree-holder to deposit such further sums as it deems necessary.
(7) If a decree-holder fails to deposit any sum as required under sub-rule
(6) above, the Court may disallow the application and direct the release of the judgment-debtor.
(8) Sums disbursed by the decree-holder under sub-rule (6) shall be deemed to be costs in the suit:
Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.” (w.e.f. 1-10-1983)
Gujarat.-In Order XXI, in rule 40, after sub-rule (5), insert sub-rules (6) and (7) as in Bombay.
Karnataka.-In Order XXI, in rule 40, after sub-rule (5), insert sub-rules (6) and (7) as in Madras with the following modifications:-
(i) in sub-rule (6), after rule 37, omit the words and figures “or 38”;
(ii) in sub-rule (6), for the words “Subordinate Judge or District Munsif” subsitute the words “Judge”;
(iii) in sub-rule (6), omit the words “and the Judge signing the warrant of commital in the above cases shall also have the same powers as the Judge who issued the warrant in respect of passing such orders as may be appropriate under sub-rule (1), (3) and (5) of this rule”.
Kerala.-In Order XXI, in rule 40,-
(i) for sub-rule (2), substitute the following sub-rule, namely:-
“(2) Pending the conclusion of the inquiry under sub-rule (1), the Court shall release the judgment-debtor on his furnishing security to the satisfaction of the Court for his appearance when required and if the judgment-debtor fails to furnish the security ordered, the Court may order the judgment-debtor to be detained in the custody of an officer of the Court on the decree-holder depositing in Court the necessary amounts payable to the judgment-debtor and the officer of the Court in connection with such detention.” (w.e.f 16-1-1990)
(ii) substitute the sub-rules (6) and (7) as in Madras but in sub-rule (6) for the words “District Munsif”, substitute the word “Munsif”. (w.e.f 16-9-1960)
Madhya Pradesh.-In Order XXI, in rule 40, insert sub-rules (6), (7) and (8) as in Bombay. (16-9-1960)
Madras.-In Order XXI, in rule 40, insert the following sub-rule, namely:-
“(6) During the temporary absence of the Judge who issued the warrant under rule 37 or 38, the warrant of committal may be signed by any other Judge of the same Court or by any Judicial Officer superior in rank who has jurisdiction over the same locality ‘or’ where the arrest is made on a warrant issued by the District Judge, the warrant of committal may be signed by any Subordinate Judge or District Munsif empowered in writing by the District Judge in this behalf and the Judge signing the warrant of committal in the above cases shall also have the same powers as the Judge who issued the warrant in respect of passing such orders as may be appropriate under sub-rules (1), (3) and (5) of this rule.
(7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the Judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort. sub-rule (5) of rule 39 shall apply to such payments.” (w.e.f. 5-9-1968)
Attachment of property
41. Examina
tion of judgment-debtor as to his property
1[(1)] Where a decree is for the payment of money the decree-holder may apply to the Court for an order that-
(a) The judgment-debtor, or
(b) 2[where the judgment-debtor is a corporation], any officer thereof, or
(c) any other person,
be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.
3[(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree-holder and without prejudice to its power under sub-rule (1), by order require the judgment-debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.
(3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.]
1. Rule 41 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976, (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, for “in the case of a corporation” (w.e.f. 1-2-1977).
3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
42. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.
Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.
43. Attachment of movable property, other than agricultural produce, in possession of judgment-debtor
Where the property to be attached is movable property, other than agricultural produce, in the possession of the j udgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.
HIGH COURT AMENDMENTS
Andhra Pradesh.- Same as in Madras.
Calcutta.-In Order XXI, for rule 43, substitute the following sub-rule, namely:-
“43. Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure at the identification of the decree-holder or his agent, save as otherwise prescribed, the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:
Provided that when the property seized does not, in the opinion o
f the attaching officer, exceed twenty rupees in value or is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.”
[Vide Notification No. 25585-G, dated 3rd November, 1933 and Notification No. 4440-G, dated 29th May, 1941.]
Delhi.-Same as in Punjab.
Gauhati.-Same as in Calcutta.
Gujarat.-Same as in Madhya Pradesh. (w.e.f. 17-8-1961)
Himachal Pradesh.-Same as in Punjab.
Karnataka.-In Order XXI, in rule 43, same as in Madras with the following modifications:-
(i) in the second proviso omit the words “agricultural implements”
(ii) for clause (a), substitute the following clause, namely:-
“(a) in the charge of the person at whose instance the property is retained if such person enters into a bond in the prescribed form with one or more sureties for its production when called for, or.”
Kerala.-In Order XXI, for rule 43, substitute the following rule, namely:-
“43. Attachment of moveable property other than agricultural produce, in possession of judgment-debtor.-(1) Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of any of his subordinates and shall be responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once, and:
Provided also that when the property attached consists of livestock, agricultural implements or other articles which cannot be conveniently removed and the attaching officer does not act, under the first proviso to this rule, he may, at the instance of the judgment-debtor, or of the decree-holder, or of any person claiming to be interested in such property, leave it in the village or at the place where it has been attached.
(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in Form No. 15A of Appendix E to this Schedule with one or more sufficient sureties for its production when called for; or ‘
(b) in the charge of an officer of the Court, if a suitable place for its safe custody is provided and the remuneration of the officer for a period of 15 days at such rate as may from time to time be fixed by the High court be paid in advance.
(2) Whenever an attachment made under the provisions of this rule ceases for any of the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.
(3) When attached property is kept in the village or place where it is attached.-Whenever attached property is kept in the village or place where it is attached, the attaching officer shall forthwith report the fact to the Court and shall with his report forward a list of the properties seized.
(4) Procedure when attached property is neither sold nor kept in the village or place where it is attached.-If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attac
hed under the second proviso to that rule, it shall be brought to the Court-house and delivered to the proper officer of the Court.
(5) Where attached property kept in the village etc. is livestock.-Whenever attached property kept in the village or place where it is attached is livestock, the person at whose instance it is so retained shall provide for its maintenance, and, if he fails to do so and if it is in charge of an officer of the Court, it shall be removed to the Courthouse.
Nothing in his rule shall prevent the judgment-debtor or any person claiming to be interested in such live stock from making such arrangements, for feeding the same as may not be inconsistent with its safe custody.
(6) Direction for sums expended by attaching officer.-The Court may direct that any sums which have been expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the proceeds of property if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any parry to the proceedings.”
[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]
Madhya Pradesh.-(i) In Order XXI,-
(i) renumber rule 43 as sub-rule (1) thereof;
(ii) in sub-rule (1) as so renumbered, in the proviso, at the end before semi colon, insert the word “and”;
(iii) in sub-rule (!) as so renumbered, after the proviso, insert the following further proviso, namely:-
“Provided also that when the property attached consist of live-stock, agricultural implements or other articles which cannot be conveniently removed, and the attaching officer does not act under the first proviso to this rule, he may at the instance of the judgment-debtor or of the decree-holder or any person claiming to be interested in such property, leave it in the village or at the place where it has been attached-
(a) In the charge of the judgment-debtor, or of the station pound-keeper, if any, or
(b) In the charge of the decree-holder, or of the person claiming to be interested in such property or of such respectable person as will undertake to keep such property, on his entering into a bond with one or more sureties in an amount not less than the value of the property, that he will take proper care of such property and produce it when called for.” (iv) after sub-rule (1) as so renumbered insert the following sub-rule namely:- “:
“(2) The attaching officer shall make a list of the property attached and shall obtain thereto the acknowledgment of the person in whose custody the property is left, and if possible of the parties to the suit, and of at least one respectable person in attestation of the correctness of the list. If the property attached include both livestock and other articles, a separate list of (tie livestock shall similarly be prepared and attested.” (w.e.f. 16-94960)
Madras.-In Order XXI,-
(i) renumber rule 43 as sub-rule (1) thereof;
(ii) in sub-rule (1) as so renumbered, in the proviso, at the end, before colon insert the word “and”;
(iii) in sub-rule (1) as so renumbered, after the proviso, insert the following further proviso, namely:-
“Provided also that, when the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently by removed and the attaching officer does not act under the first proviso to this rule, he may
at the instance of the judgment-debtor or of the decree-holder or of any person claiming to be interested in such property leave it in the village or place where it has been attached-
(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in Form No ISA of Appendix E to this Schedule with one or more sufficient sureties for its production when called for, or
(b) in the charge of an officer of -the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of 15 days at such rate as may from time to time be fixed by the High Court be paid in advance.”
(iv) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-
(2) Whenever an attachment made under the provisions of this rule ceases for any of the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.”
Orissa.-Same as in Patna.
Patna.-(a) In Order XXI, in rule 43, omit the words “shall keep the property in his own custody or in the custody of one of his subordinates, and.”
Punjab.-(i) In Order XXI,-
(i) re-number rule 43 as sub-rule (1) thereof;
(ii) in sub-rule (1) as so renumbered, insert a further proviso which is same as in Madras with addition of the following clause, namely:-
“(c) in the charge of a village lambardar or such other respectable person as will undertake to keep such property, subject to the orders of the Court, if such person enters into a bond in Form No. 15B of Appendix E, with one or more sureties for its production.”;
(iii) Insert sub-rule (2) which is same as in Madras (iv);
(iv) after sub-rule (2) insert the following sub-rule, namely:-
“(3) When property is made over to custodian under sub-clause as (a) or (c) of clause (1), the Schedule of property annexed to the bond shall be drawn up by the attaching officer in triplicate, and dated and signed by;
(a) the custodian and his sureties;
(b) the officer of the Court made the attachment;
(c) the person whose property is attached and made over;
(d) two respectable witnesses.
One copy will be transmitted to the Court by the attaching officer and placed on the record of the proceedings under which the attachment has been ordered, one copy will be made over to the person whose property is attached and one copy will be made over to the custodian.”
Rajasthan.-In Order XXI, renumber rule 43 as sub-rule (1) thereof and insert a further proviso with clauses (a), (b) and (c}, sub-rules (2) and (3) as in Punjab with the following modifications:-
(ii) in the proviso, in clause (c) for the words “village lambardar”, substitute the words “village Patwari.”
1[43A. Custody of movable property
(1) Where the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, he may, at the instance of the judgment-debtor or of the decree-holder or of any other person claiming to be interested in such property, leave it in the village or place where it has been attached, in the custody of any respectable person (hereinafter referred to as the “custodian”).
(2) If the custodian fails, after due notice, to produce such property at the place named by the Court before the officer deputed for the purpose or to restore it to the person in whose favour restoration is ordered by the Court, or if the property, though so produced or restored, is not in the same condition as it was when it was entrusted to him,-
(a) the custodian shall be liable to pay compensation to the decree-holder, judgment-debtor or any other person who is found to be entitled to the restoration thereof, for any loss or damage cause by his default; and
(b) such liability may be enforced-
(i) at the instance of the decree-holder, as if the custodian were a surety under section 145;
(ii) at the instance of the judgment-debtor or such other person, on an application in execution; and
(c) any order determining such liability shall be appealable as a decree.]
1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).
HIGH COURT AMENDMENTS
Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, after rule 43A, insert the following rule, namely:-
“43B. Attachment of live-stock.-(1) When an application is made for the attachment of live-stock the Court may demand in advance in cash at rate to be fixed half-yearly, or oftener, if necessary, by the Courts with the sanction of the District Judge, the amount requisite for the maintenance of the live-stock from the probable time of attachment to the probable time of sale, or may, at its discretion, make successive demands for portions of such period. The rates shall include cost of feeding, tending and conveyance and all other charges requisite for the maintenance and custody of the livestock.
(2) If the live-stock be entrusted to any person other than the judgment-debtor, the amount paid by the decree-holder for the maintenance of the live-stock or a part thereof, may, at the discretion of the Court, be paid to the custodian of the live-stock for their maintenance. The produce, such as milk, eggs, etc. if any, may either be sold, as promptly as possible for the benefit of the judgment-debtor, or may, at the discretion of the Court, be set-off against the cost of maintenance of the live-stock.” (w.e.f. 1-10-1983)
Delhi.-Same as in Punjab, (w.e.f 31-10-1966)
Gujrat-Same as in Madhya Pradesh. (w.e.f 17-8-1961)
Himachal Pradesh.-Same as in Punjab, (w.e.f. 31-10-1966)
Karnataka.-Same as in Madras, (w.e.f. 30-3-1967)
Madhya Pradesh.-In Order XXI, after rule 43, insert the following rule, namely:-
“43A. Attachment of livestock.-(1) When an application is made for the attachment of livestock the Court may demand, in advance in cash at rates to be fixed half yearly or oftener, if necessary, by the Courts with the sanction of the District Judge, the amount requisite for the maintenance of the livestock from the probable time of attachment to the probable time of sale, or may, at its discretion, make successive demands for portions of such period. The rates shall include cost of feeding, tending and conveyance, and all other charges requisite for the maintenance and custody of the livestock.
(2) If the livestock be entrusted to any person other than the judgment-debtor, the amount paid by the decree-holder for the maintenance of the livestock or a part thereof, may, at the discretion of the Court, be paid to the custodian of the livestock fo
r their maintenance. The produce, such as milk, eggs, etc. if any, may either be sold as promptly as possible for the benefit of the judgment-debtor or may, at the discretion of the Court, be set off against the costs of maintenance of the livestock.” (w.e.f. 16-9-1960)
Madras.-In Order XXI, after rule 43, insert the following rules, namely:-
“43A. (1) Whenever attached property is kept in the village or place where it is attached, the attaching officer shall forthwith report the fact to the Court and shall with his report forward a list of the property seized.
(2) If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attached under the second proviso to that rule, it shall be brought to the Court house and delivered to the proper officer of the Court.
43B. (1) Whenever attached property kept in the village or place where it is attached is live-stock, the person at whose instance it is so retained shall provide for its maintenance, and, if he fails to do so and if it is in charge of an officer of the Court it shall be removed to the Court-house.
Nothing in this rule shall prevent the judgment-debtor or any person claiming to be interested in such stock from making such arrangements for feeding the same as may not be inconsistent with its safe custody.
(2) The Court may direct that any sums which have been expended by the attaching officer or care payable to him, if not duly deposited or paid, be removed from the proceeds of property, if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachments from any party to the proceedings.” (w.e.f. 5-9-1968)
Orissa.-Same as in Patna.’
Patna.-In Order XXI, after rule 43, insert the following rule, namely:-
“43A. (1) The attaching officer shall, in suitable cases, keep the attached property in the village or locality either-
(a) in his own custody in any suitable place provided by the judgment-debtor, or in his absence by any adult member of his family who is present, on his own premises or elsewhere;
(b) in the case of live-stock, and provided the decree-holder furnishes the necessary funds, in the local pound, if a pound has been established in or near the village in which case the pound-keeper will be responsible for the property to the attaching officer, and shall receive the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description, or such less rate as may be agreed upon;
(c) in the custody of a respectable surety, provided the decree-holder furnishes the cost of maintenance and other costs, if any.
(2) If in the opinion of attaching officer the attached property cannot be kept in .the village or locality, through lack of a suitable place, or satisfactory surety, or through failure of the decree-holder to provide necessary funds, or for any other reason, the attaching officer shall remove the property to the Court at the decree-holder’s expense. In the event of the decree-holder failing to provide the necessary funds, the attachment shall be withdrawn.
(3) Whenever attached property is kept in the village or locality as aforesaid, the officer shall forthwith report the fact to the Court and shall with his report forward an accurate list of property seized, such that the Court may thereon at once issue the proclamation of sale prescribed by rule 66.
(4) If the debtor shall give his co
nsent in writing to the sale of the property without awaiting the expiry of the terms prescribed in rule 68, the officer shall receive the same and forward it without delay to the Court for its orders.
(5) When property is removed to the Court it shall be kept by the Nazir on his own sole responsibility in such place as may be approved by the Court. If the property cannot, from its nature of bulk, be conveniently kept on the Court premises, or in the personal custody of the Nazir, he may, subject to approval by the Court, make such arrangements for its safe custody under his own supervision as may be most convenient and economical, and the Court may fix the remuneration to be allowed to the persons, not being officers of the Court, in whose custody the property is kept.
(6) When property remains in the village or locality where it is attached and any person other than the judgment-debtor shall claim the same, or any part of it, the attaching officer shall nevertheless unless the decree-holder desires to withdraw the attachment of the properly so claimed, maintain the attachment, and shall direct the claimant to prefer his claim to the Court.
(7) (a) If the decree-holder shall withdraw an attachment or it shall be withdrawn under sub-rule (5) or sub-rule (9) the attaching officer shall inform the debtor, or in his absence any adult member of his family, that the property is at his disposal.
(b) In the absence of any person to take charge of it, or in case the officer shall have had notice of claim by a person other than the judgment-debtor, the officer shall, if the property has been moved from the premises in which it was seized, replace it where it was found at the time of seizure.
(8) Whenever live-stock is kept in the village or locality where it has been attached, the judgment-debtor shall be at liberty to undertake the due feeding and tending of it under the supervision of the attaching officer; but the latter shall, if required by the decree-holder, and on his paying for the same at the rate to be fixed by the District Judge, and subject to the orders of the Court under whose orders the attachment is made, engage the services of as many persons as may be necessary, for the safe custody of it.
(9) In the event of the judgment-debtor failing to feed the attached live-stock in accordance with sub-rule (8), the officer shall call upon the decree-holder to pay forthwith for feeding the same. In the event of his failure to do so, the officer shall proceed as provided in sub-rule (2), and shall report the matter to the Court without delay.
(10) When attached live-stock is brought to Court, the Nazir shall be responsible for the safe custody and proper feeding of it so long as the attachment continues.
(11) If a pound has been established in or near the place where the Court is held, the Nazir shall be at liberty to place in it such attached livestock as can be properly kept there, in which case the pound-keeper will be responsible for the property to the Nazir and shall receive the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description, or such less rate may be agreed upon.
(12) If there be no pound available, or if, in the opinion of the Court it be inconvenient to lodge the attached live-stock in the pound, the Nazir may keep it in his own premises, or he may entrust it to any person selected by himself and approved by the Court. The Nazir will in all cases remain responsible for the custody of the property.
(13) Each Court shall from time to time fix the rates to be allowed for the custody and maintenance of the various descriptions of live-stock with reference to seasons and local circumstances. The District J
udge may make any alteration he deems fit in the rates prescribed by Counts subordinate to him. Where there are two or more Courts in the same place, the rates shall be the same for each Court.”
Punjab.-In Order XXI, after rule 43, insert the following rules, namely:-
“43A. (1) Same as sub-rule (1) of Madras.
(2) Same as sub-rule (2) of Madras.
(3) A custodian appointed under the second proviso to rule 43, may at any time terminate his responsibilities by giving notice to the Court of his desire to be relieved of his trust and delivering to the proper officer of the Court the property made over to him.
(4) When any property is taken back from a custodian, he shall be granted a receipt for the same. ji
43B. (1) Same as sub-rule (1) of Madras. —
(2) Same as sub-rule (2) of Madras.
43C. When an application is made for the attachment of live-stock or other moveable property, the CPC-63 decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for 15 days. If within the clear days, before the expiry of any such period of 15 days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper office, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.
43D. Any person who has undertaken to keep attached property under rule 43(l)(c) shall be liable to be proceeded against as a surety under section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.”
[Ed.-All the amendments quoted above relating to rule 43A (rule 43B, 43C, 43D) were made prior to the insertion of rule 43A by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]
44. Attachment of agricultural produce.
Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment,-
(a) where such produce is a growing crop, on the land on which such crop has grown, or
(b) where such produce has been cut or gathered, on the threshing floor or place for treading out grain or the like or fodder-stack on or in which it is deposited, and another copy on the outer door or on some other conspicuous part of the house in which the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain or in which he is known to have last resided or carried on business or personally worked for gain; and the produce shall thereupon be deemed to have passed into the possession of the Court.
HIGH COURT AMENDMENTS
Bombay.-In Order XXI, after rule 44, insert the following rule, namely:-
“44A. Copy of the warrant of attachment to be sent to the Collector where agricultural produce is attached.-Where the property to be attached is agricultural produce, a copy of the warrant or the order of attachment shall be sent by post to the office of the Collector of the district in which the land is situate.” (w.e.f. 1-10-1983)
Calcutta.-In Order XXI, in rule 44, after the words “attachment shall be made”, insert the words “at the identification of the decree-holder or his agent”.
[Vide Notification No. 4440-G, dated 29th May, 1941.]
Gauhati.-Same as in Calcutta. Gujarat-Same as in Bombay.
45. Provisions as to agricultural produce under attachment
(1) Where agricultural produce is attached, the Court shall make such arrangements for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements, every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.
(2) Subject to such conditions as may be imposed by the Court in this behalf either in the order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it; and if the judgment-debtor fails to do all or any of such acts, the decree-holder may, with the permission of the Court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf and the costs incurred by the decree-holder shall be recoverable from the judgment-debtor as if they were included in, or formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.
(4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution of the order for such time as it thinks fit, and may, in its discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.
(5) A growing crop which from its nature does not admit of being stored shall not be attached under the rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.
HIGH COURT AMENDMENTS
Andhra Pradesh.-Same as in Madras.
Bombay.-In Order XXI, in rule 45, in sub-rule (1), at the end, insert the words “and the applicant shall deposit in Court at the time of the application such sum as the Court shall deem sufficient to defray the cost of watching and tending the crop till such time”, (w.e.f. 1-10-1983)
Calcutta.-In Order XXI, in rule 45, in sub-rule (1), at the end, insert the following words “and the applicant shall deposit in Court such sum as the Court shall require in order to defray the cost of watching or tending the crop till such time”.
[Vide Notification No. 3516-G, dated 3rd February, 1933.]
Delhi.-Same as in Punjab.
Gauhati.-Same as in Calcutta.
Gujarat.-Same as in Bombay.
Himachal Pradesh.-Same as in Punjab.
Karnataka.-Same as in Madras, (w.e.f. 30-3-1967)
Kerala.-Same as in Madras.
[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]
Madras.–
In Order XXI, in rule 45, in sub-rule (1), at the end, insert the words “and the applicant shall deposit in Court within a date to be fixed by Court, such sum as the Court may deem sufficient to defray the cost of watching and tending the crop till such time”.
[Vide GOMs No. 2084-Home, dated 2nd September, 1936-HCP Dis No. 691, dated 13th October, 1936),]
Orissa.-Same as in Patna.
Patna.-In Order XXI, in rule 45, in sub-rule {!), at the end, insert the words “and the applicant shall pay into Court such Sums as he may from time to time be required by the Court to pay in order to defray the cost of such arrangements”.
Punjab.-In Order XXI, in rule 45, in sub-rule (1), at the end, insert the words “and with every such application such charges as may be necessary for the custody of the crop up to the time at which it is likely to be fit to be cut or gathered shall be paid to the Court”.
[Vide Notification No. 125-Gaz-XI-Y-14, dated 7th April, 1932.]
46. Attachment of debt, share and other property not in possession of judgment-debtor
(1) In the case of-
(a) a debt not secured by a negotiable instrument,
(b) a share in the capital of a corporation,
(c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,-
(i) in the case of the debt, the credit or from recovering the debt and the debtor from making payment thereof until the further order of the Court;
(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
(iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.
(2) A copy of such order shall be affixed on some conspicuous part of the court-house, and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.
(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.
1[46A. Notice to garnishee
(1) 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, 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.
(2) An application under sub-rule (1) shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent, the garnishee is indebted to the judgment-debtor.
(3) 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.
1. Ss. 46A to 46I Ins. by Act. No. 104 of 1976 (w.e.f. 1-2-1977).
46B. Order against garnishee
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 terms of such notice, and on su
ch order, execution may issue as though such order were a decree against him.
46C. Trial of disputed questions
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:
Provided that if the debt in respect of which the application under rule 46A 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 the said Court is subordinate, and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in that Court.
46D. 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.
46E. Order as regards third person
After hearing such third person and any person or persons who any subsequently be ordered to appear, or where such third or other person or persons do not appear when so 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 or other person or persons as it may deem fit and proper.
46F. Payment by garnishee to be valid discharge
Payment made by the garnishee on notice under rule 46A 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 46A was made, or the order passed in the proceedings on such application may be set aside or reversed.
46G. Costs
The costs of any application made under rule 46A and of any proceeding arising therefrom or incidental thereto shall be in the discretion of the Court.
46H. Appeals
An order made under rule 46B, rule 46C or rule 46E shall be appealable as a decree.
46I. Application to negotiable instruments
The provisions of rule 46A to 46H (both inclusive) shall, so far as may be, apply in relation to negotiable instruments attached under rule 51 as they apply in relation to debts.]
HIGH COURT AMENDMENT
Bombay.-In Order XXI, for rules 46A to 46-1, substitute the following rules, namely:-
“46A. *[Payment of debt or amount under negotiable instrument or delivery of movable property in Court, etc., in the hands of Garnishee].-
(1) Upon the application of the decree-holder, the Court may in case of,-
(1) any debt (other than a debt secured by a mortgage or a charge or a negotiable instrument) of which the Civil Courts are not precluded from adjudicating upon by any law for the time being in force and which has been attached under rule 46 of this Order; or
(2) any movable property not in possession of the judgment-debtor which has been attached under rule 46 of this Order; or
(3) any negotiable instrument which has been attached under rule 51 of this O
rder; or
(4) any movable property of the nature referred to in (1) to (3) above in the custody of any public officer other than officer of any Court, which has been attached under rule 52 of the Order,
issue notice to any person liable to pay to the judgment-debtor such debtor or the amount due under such negotiable instrument or liable to deliver such movable property or to account for it to the judgment-debtor (hereafter referred to as “the Garnishee”) calling upon him within the period specified in the notice either to pay into Court the said debt or amount payable under the said negotiable instrument or deliver into Court the said movable property, as the case may be, or so much thereof as may be sufficient to satisfy the decree or order and the cost of execution or to appear before the Court and show cause why he should not be ordered to do so.
The notice shall be served on the garnishee and, if the Court so directs on the judgment-debtor also. The notice be served eight clear days before the returnable data thereof:
Provided that, subject to the proviso of rule 46C if by any law for the time being in force, the jurisdiction to adjudicate upon the debt or claim relating to the negotiable instrument or movable property in respect of which the application aforesaid is made is conferred on a Civil Court other than the execution Court, the Court shall send the execution case to the District Court to which the said Court is subordinate and thereupon the District Court shall transfer the case to the competent Court and on such transfer the Court to which the case is transferred will deal with it in the same manner as if it had been originally instituted in that Court.
Explanation.-(1) When the District Court itself is the competent Court it may deal ‘the case in the same manner as if it had been originally instituted in that Court.
(2) Such application shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent the garnishee is indebted to the judgment-debtor or that the property belongs to the judgment-debtor.
46B. *[Order against Garnishee].-Where the garnishee does not within the time specified in the notice within such rime as the Court may allow to pay into Court the said debt or the amount payable under the said negotiable instrument or does not deliver into Court the said property as is sufficient to satisfy the decree or order and the cost of the execution or does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice or pass such other as it may deem fit.
46C. *[Determination of disputed qualifications].-If the garnishee disputes his liability, the Court instead of making such order may order that any issue or question necessary for determining his liability be tried as though it were an issue in a suit; and upon the determination of such issue shall pass order upon the notice as it may think fit:
Provided that if the amount of the debt or the amount payable under the negotiable instrument or the value of the property in respect of which the application aforesaid is made exceeds the pecuniary jurisdiction of the Court, the Court shall send the execution case to the District Court to which the said Court is subordinate and thereupon the District Court or any other competent Court to which it may be transferred by the District Court will deal with it in the same manner as if it had been originally instituted in that Court.
46D. *[Discharge of Garnishes}.-If the garnishee appears in answer to the garnishee notice shows cause to the satisfaction of the Court, the notice shall be dismissed and upon such dismissal the attachment ordered under rule 46, 51 or 52 of t
his Order shall stand raised and the prohibitory order, if any, shall stand discharged.
46E. *[Adjudication of claims by third party].-Whenever in the course of proceedings against the garnishee it is alleged or appears to the Court to be probable that some person other than the judgment-debtor is or claims to be entitled to the debt attached or the amount payable under the negotiable instrument or the property attached or claims to have a charge or lien upon or interest in such debt or amount or property the Court may order such third person to appear before it and state the nature of his claim with particulars thereof and, if necessary, prove the same.
46F. *[Claim of third person to be tried as in a suit].-After hearing such third person and any other person who may subsequently be ordered to appear, or in case of such third person or other persons not appearing when ordered, the Court may pass such order as is provided under rule 46B, 46C or 46D or such order or orders upon such terms, if any, with respect to the lien or charge or interest if any of such third or other person as it may deem fit and proper including an order that any question or issue necessary for determining the validity of the claim of the third or other person be tried as though it were an issue in a suit.
46G. [*Execution of order under rules 46B, 46C and 46F],-(a) An order made by the Court under rules 46B, 46C or 46F against the garnishee shall be executable as if it were decree of the Court in favour of the decree-holder.
(b) When money or negotiable instrument or property is received in Court as a result of an order under rule 46B, 46C or 46F above, the money shall not be paid and further steps in execution in respect of the negotiable instrument or property shall not be taken till the time for filing an appeal against the said order is over and whether an appeal is filed, till further orders of the Appellate Court.
46H. *[Discharge of Garnishee’s liability].-Any payment or delivery made by a garnishee in compliance with a garnishee notice or order made against him under rule 46B, 46C or 46F of this Order or any money or property realised in execution of an order under these rules shall be a valid discharge of the garnishee’s liability to the judgment-debtor and to any other person or persons ordered to appear under rule 46E or 46F of this Order for the amount paid or levied or property delivered or property realised in execution, although the decree in execution of which the application under rule 46A was made, or the order passed in the proceedings on such application may be set aside or reversed.
46-I. *[Garnishee proceeding against a firm].-Where a debt due by a firm to the judgment-debtor has been attached it may be proceeded against under rules 46A to 46H of this order in the same manner as in the case of an ordinary garnishee, and provisions of Order XXX of this Code shall, so far as applicable, apply to such proceedings although one or more partners of such firm may be resident outside the jurisdiction of the Court:
Provided that any person having the control or management of the partnership business or any partner of the firm who is within the jurisdiction of the Court is served with garnishee notice. An appearance by any partner pursuant to such notice shall be sufficient appearance by the firm.
46J. *[Costs].-The costs of any application made under rule 46A of this order and of any proceedings arising therefrom or incidental thereto shall be in the discretion of the Court.
46K. *[Appeal against order made under rules 46B, 46C, 46F and 46G].-Any order made under rule 46B, 46C, 46F or 46G of this Order shall be appealable as a decree.”
[Vide Maharashtra Government Gazette, Ft. IV, ka., p. 413, dated 15th Sep
tember, 1983 (w.e.f. 1-10-1983) and *Maharashtra Government Gazette, Ft, IV, ka, p. 100, dated 20th April, 1989 (w.e.f. 20-4-1989).
47. Attachment of share in movables
Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.
48. Attachment of salary or allowances of servant of the Government or railway company or local authority
(1) Where the property to be attached is the salary or allowances of a 1[servant of the Government] or of a servant of a railway company or local authority 2[or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)] the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and, upon notice of the order to such officer as 3[the appropriate Government may by notification in the Official Gazette] appoint 4[in this behalf,-
(a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remits to the Court the amount due under the order, or the monthly instalments, as the case may be;
(b) where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to the disbursed shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time, to be disbursed by the aggregate of the amounts from time to time remitted to the Courts.
(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.
5[(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2) shall, without further notice or other process, bind the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits, if he is in receipt of any salary or allowances payable out of the Consolidated Fund of India or the Consolidated Fund of the State or the funds of a railway company or local authority or corporation or Government company in India; and the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, shall be liable for any sum paid in contravention of the rule.]
6[Explanation.-In this rule, “appropriate Government” means,-
(i) as respects any person in the service of the Central Government, or any servant of a railway administrati
on or of a cantonment authority or of the port authority of a major port, or any servant of a corporation engaged in any trade or industry which is established by Central Act, or any servant of a Government company in which any part of the share capital is held by the Central Government or by more than one State Governments or partly by the Central Government and partly by one or more State Governments, the Central Government;
(ii) as respects any other servant of the Government, or a servant of any other local or other authority, or any servant of a corporation engaged in any trade or industry which is established by a Provincial or State Act, or a servant of any other Government company, the State Government.]
HIGH COURT AMENDMENTS
Andhra Pradesh.– Same as in Madras.
Madras.-In Order XXI, in rule 48, in sub-rule (1), in clause (a), at the end, insert the words “such amount or instalment being calculated to the nearest anna by factions of an anna or six pies and over being considered as one anna and omitting amounts less than six pies”.
[Vide ROC No. 1310 of 1926.]
1. Subs. by Act 5 of 1943, sec. 3, for “public officer”.
2. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).
3. Subs. by Act 25 of 1942, sec. 3 and Sch. II, for certain words.
4. Subs. by Act 26 of 1939, sec. 2, for certain words.
5. Subs. by Act 104 of 1976, sec. 72, for sub-rule (3) (w.e.f. 1-2-1977).
6. Subs. by Act No. 104 of 1976 for Explanation (w.e.f. 1-2-1977).
1[48A. Attachment of salary or allowances of private employees
(1) Where the property to be attached is the salary or allowances of an employee other than an employee to whom rule 48 applies, the Court, where the disbursing officer of the employee is within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and upon notice of the order to such disbursing officer, such disbursing officer shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be.
(2) Where the attachable portion of such salary or allowances is already being withheld or remitted to the Court in pursuance of a previous and unsatisfied order of attachment, the disbursing officer shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.
(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further notice or other process, bind the employer v/hile the judgment-debtors is within the local limits to which this Code for the time being extents and while he is beyond those limits, if he is in receipt of salary or allowances payable out of the funds of an employer in any part of India; and the employer shall be liable for any sum paid in contravention of this rule.]
1. Ins. by Act. No. 104 of 1976, sec. 72, (w.e.f. 1-2-1977).
49. Attachment of partnership property.
(1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.
(2) The Cou
rt may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property, and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the degree-holder by such partner, or as the circumstances of the case may require.
(3) The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.
(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within 1[India].
(5) Every application made by any partner of the judgment-debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within India.
(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners and all orders made on such application shall be similarly served.
1. Subs. by Act 2 fo 1951, sec. 3, for “the States.”
50. Execution of decree against firm.
(1) Where a decree has been passed against a firm, execution may be granted-
(a) against any property of the partnership;
(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;
(c) against any person who has been individually served as a partner with a summons and has failed to appear:
Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of 1[section 30 of the Indian Partnership Act, 1932 (9 of 1932)].
(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.
(3) Where the liability of any person has been tried and determined under sub-rule (2) 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.
(4) Save as against any property of the partnership, a decree against a firm shall not lease, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.
2[(5) Nothing in this rule shall apply to a decree passed against a Hindu Undivided Family by virtue of the provision of rule 10 of Order XXX.]
HIGH COURT AMENDMENTS
Allahabad.-In Order XXI, in rule 50, in sub-rule (2), after the words “passed the decree”, insert the words “or to which the decree is transferred for execution”.
[Vide Notification No. 43/vii a-29,
dated 1st June, 1957.]
Orrisa.-Same as in Patna. ” ,-.
Patna.-In Order XXI, in rule 50, in sub-rule (2), after the words “passed the decree”, insert the words “or to the Court to which it is suit for execution”.
1. Subs, by Act No. 104 of 1976, for “section 247 of the Indian Contract Act, 1872 (9 of 1872)” (w.e.f. 1-2-1977).
2. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).
