Report No. 27

Order XXI, rule 43A

After rule 43 of Order XXI of the First Schedule to the principal Act, the following rule shall be inserted, namely:-

"43A. Custody of movable property.-(1) When 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 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.

(2) If the custodian fails, after due notice, to produce such property at the place named by the Court to the officer deputed for the purpose or to restore it to the owner if so 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 the owner thereof, for any loss caused by his fault; 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.".

Order XXI, rule 46A to 461 (New)

After rule 46 of Order XXI of the First Schedule to the principal Act, the following rules shall be inserted, namely:-

"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 satisfij 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 the costs of the execution.

[Cf. R.S.C. 1883, Order XLV and County Courts Rules, Order 27.]

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 such 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 where an issue in a suit, and upon the determination of such issue shall make such order or orders upon the parties as may seem just:

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 may 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, if any, of such third or other person or persons as may seem 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. Appeal.-An order made under rule 46B, 46C or rule 46E shall be appealable as a decree.

46-I. Application to negotiable instruments.-The provisions of rules 46A to 46H shall, so far as may be, apply in relation to negotiable instruments attached under rule 51 as they apply in relation to debts."

Order XXI, rule 48

In rule 48 of Order XXI of the First Schedule to the principal Act,-

(a) in sub-rule (1), after the words "local authority", the words and figures "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) shall be inserted;

(b) for sub-rule (3), the following sub-rule shall be substituted, namely:-

"(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 revenues of the Central Government or a State Government or the funds of a railway company carrying on business in any part of India 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 this rule.";

(c) for the Explanation, the following Explanation shall be substituted, namely:-

"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 administration 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 a 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 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.".

[Cf. section 617, Companies Act, 1956.]

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