 but also with the Kerala judicial academy where as I say his heart is very very close since it has been one of his brainchild when it groomed up and garnishing proceedings is an important aspect as to in the execution proceedings as to how the bank can help in the third party rights or those orders can be attached the interplay of the execution and the attachment these different aspects one always intends to learn and understand and since they all say in the execution proceedings that to get a judgment or a decree it's easy but to get it executed is more tough and before we were about to go to with the session live I was just discussing with Justice Katie Sankaran he said that this aspect of law is quite interesting and fascinating but at the same time it has its own trappings and its own journey to have the fruits of the same but what are the ways to get the fruits in the right way today we will be taking those understandings from Justice Katie Sankaran so that we can understand his style of teaching is always to make complicated things simplified and a common man can all understand and for this reason his webinars on a platform are doing exceedingly well what do you say thank you Mr. Vikas and thank you all the viewers and first of all I thank the organizers for giving me this opportunity to address you today's subject is garnishing proceedings it is a difficult area difficult to understand difficult to apply but my grievance is that even though if even though on a better coordination with the litigants you will get opportunity to use it many of the lawyers are not doing it two reasons one they are not interacting with their litigants in the way in which they should do to this reluctance to apply the garnishing see when a client approaches you with a degree and ask you sir you please see that this is executed first thing you have to ascertain is what are all the assets which belong to the gentleman in what way the execution has to be whether it is to be by arrest and detention or by attachment and same all those things under section 51 CPC and in the course of time you must also realize that many a times the judgment order takes the plea of no means and if the decree holder fails to prove the means of the judgment order it is difficult for to get an order to arrest and detain the judgment order in Switzerland and particularly the banks they do not have the facilities they do not have the the methods and ways and means to ascertain the means of the judgment as their properties their deposits their salary and all other details they do not get the necessary details to the result that many times the bank fail banks fail in getting an order of arrest and detention of the judgment most of the execution petitions filed by the banks and financial institutions fail because of their failure to prove the means of the judgment one thing I have noticed is that rule 41 of order 21 is seldom resorted to rule 41 prescribes a procedure of examination of judgment order as to his property and he can be compelled to file an affidavit but see I have not seen an advocate filing an application under rule 41 then another thing is that with the interaction with the litigant if you come across a fact that the judgment order has some debt to realize from a good part then that debt can be attached because it is a property within the meaning of section 60 of the kodo school procedure 60 details which are all the properties which are liable to be attached and so on and and debts is one of the items of properties and all other mobile or immobile property over which the judgment order has a saleable interest disposing power that can be attached and so so debt is one so how it works I will give an example A has obtained a money decree against B and B has said debt to realize from C suppose A has obtained a money decree against B for at least 10 lakhs B has to get 5 lakhs B has to get 15 lakhs from C A can get B's debt attached and the amount can be realized C can be directed by the court not to pay the amount to B but to deposit the amount in court for payment to A so therefore even though there is no primitive contract between A and C and even though C is not a party to the soup he can be noticed can be given to C he can be called to the court and he can be given a direction can be given to him to deposit the money in court and to pay the amount to A and if C obeys that order A's decree for 10 lakhs B's debt for 15 lakhs C is summoned C is asked whether there is a debt due to B yes there is a debt due to B all right don't pay the debt to B deposited court for payment to A C obeys it and deposit rupees 10 lakhs court will pass an order to pay that 10 lakhs to A and to that extent C is discharged from his liability to B so B need C need pay only the balance 5 lakhs to C B cannot recover 15 lakhs from B C he cannot that is a procedure so in a case where C is not a party at all and in a case where there is no primitive contract between A and C C can be made liable to pay them off this is in short garnishing and C is called the garnishing now please note I have requested Vigas Chhatrak to request all the participants to bring CPC so that you can note it down there please note down in a paper the following A please note decree holder B judgment letter within brackets creditor of C creditor of C C debtor of B debtor of B D please note as against his name third person B is third person these are all the expressions which may occur in the provisions the provisions which we have to deal with is order 21 rules 46 to 46 I there are other provisions also which we will come to please also note other expressions which may occur here A attaching creditor attaching creditor B judgment letter C garnishing these are all the expressions which may occur in rule 46 to 46 I of order 20 now let us see rule 46 order 21 rule 46 by raid and I will request you to mark in your book at the particular places A, B, C like that so that thereafter whenever anybody reads it he will understand attachment of debt share and other property not in the possession of judgment data in the case of A a debt not secured by a negotiable instrument please note their negotiable instrument is specifically dealt with in rule 46 I rule 46 I B a share in the capital of a corporation C other mobile property not in the possession of the judgment not in the possession of the judgment except property deposited in or in the custody of any court please note property not in the possession not in the possession please note in the possession of the judgment is specifically dealt with in rule 43 rule 43 specifically refers to the property in the possession of the judgment so that rule takes care of that then money property deposited in or in the custody of any court that is dealt with that is taken care of by order 21 rule 52 now these are all the three categories how it is to be dealt with the attachment shall be made by a written order prohibiting in the case of a debt the creditor from recovering please underline the creditor and mark their B in the case of a debtor the creditor from recovering creditor is B from recovering the debt and the debtor from making payment debtor C until further order of the court to in the case of a share the person whose name the share may be standing from transferring the same or receiving any dividend there on in the case of other mobile property except as a force it the person in possession of the same from giving it over to the judge minute underline the judgment error and mark B B what is this order in the case of these three cases which are mentioned A to C the attachment shall be made by a written order prohibiting in the manner provided in subclass 1 and 2 subclass 1 to 3 a copy of such order sub rule 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 a debt to the debtor please note C to the debtor C in the case of a share to the proper officer of the corporation and the case of other mobile property except as a force it to the person possession of the same 3 a debtor prohibited under clause 1 a debtor C debtor prohibited under clause 1 of sub rule 1 may pay the amount of his debt into court and such payment shall discharge him as he actually has payment to the party entitled to receive the same please underline the party entitled to receive the same is B the party entitled to receive the same is B so a debtor that C will be prohibited from paying the amount to B and he will be directed to pay the amount in court that will give give him a valid discharge towards the liability which C has got towards B now 46 a notice to garnition the court may in the case of a debt other than a debt secured by mortgage or chance which has been attached under rule 46 upon the application of the attaching creditor please note attaching creditor mark a a issue notice to the garnishing C for the first time that word garnishing occurs here there is no definition of garnishing and from the context we have to see is that garnishing the application upon the application of the attaching creditor a issue notice to the garnishing C liable to pay such debt calling upon him either to pay into court the debt due from him to the judge manager judge manager B or so much thereof as may be sufficient to satisfy the degree and cost of execution or to appear in show cause why he should not lose so the court will issue an order and notice calling upon him to deposit in court or if he is reluctant to appear before court and to show cause why he should not be directed to do so to an application under some mood what shall be made on affiliate verifying the facts alleged and stating that in the belief of the defendant the garnishing is indicted to the judge manager garnishing is C is indicted to the judge manager B and up to that effect should be filed three where the garnishing pays in the court the amount due from him to the judge manager garnishing is C pays into court the amount due from him to the judge manager yet whether it is B or such so much thereof as he is sufficient to satisfy the degree and the cost of execution the court may direct that the amount may be paid to the degree holder who is the degree holder a is the degree there is only one degree here B has not obtained a degree against B has only a debt to recover that is a difference between 46 to 46 I and rule 53 speaks of attachment of degree there in the case of A B and C A has obtained a degree in the case of rule 53 A has obtained a degree against B and B has obtained a degree against C that is the difference here B has did not have B did not obtain a degree against C that stage has not come B has only a debt to realize from C that debt is attached that is garnishing proceeds next step if B gets a degree against C garnishing proceedings cannot be initiated then it should be attachment of degree under rule 53 we will read again some rule 3 where the garnishing pays garnishing C pays in court the amount due from him to the judge manager B or so much thereof as he is sufficient to satisfy the degree and the cost of execution the court may direct that the amount may be paid to the degree holder A degree holder is A towards satisfaction of the degree and cost of execution 46 B order against Garnishing where the garnishing does not forthwith pay in the court the amount due from him to the judge manager Garnishing C judge manager B or so much thereof as he is sufficient to satisfy the degree and the cost of execution and does not appear in short cost in answer to the notice the court may order the garnishing C to comply with the terms of such notice and on such a dog order execution may issue as though such order were a decree against him him underline mark C so the garnishing notice will be issued to the garnishing the debtor of B at the instance of A with whom C has no privity of contract and then on that notice what will be the direction direction to C will be either you deposit that amount in court which is due to B or appear in short cost why he will not do and the order to be passed by the court is that the garnishing to comply with the terms of that notice and that order will be an executable order and it can be straight away executed against C so the garnishing fails to pay in spite of the order of the court in spite of the fact that he has got a he has got a liability to discharge towards B then the order which is to be passed under 46 B will enable A to execute that order which has got the effect of a decree against C so instead of B A can directly execute it against C all these tools and techniques are there in the CPC but still people say it is very difficult to realize the money there are areas where if you explore there are answers there are answers there are methods and methods it is true that it is a very very very very lengthy order order 21 rule 106 rules are there it is difficult all right but why it is difficult because it is comprehensive there are several methods and various changes have been brought in 1976 particular now trial of disputed questions then suppose C says no no no I have no liability towards B then what will what will the court do court will decide that in spite of the fact that as I said there is no primitive contract between A and C court will decide trial of disputed questions where the garnishing disputes C disputes the 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 so as if it is a suit between A and C that question will be decided once for all in spite of the fact that C is not otherwise answerable to A but in this proceeding when such a direction is issued garnishing to issue notice is issued and the garnishing disputes his library then it has to be decided by whom not by a separate suit by him set in the same proceeding itself provided that if the debt in respect of which the application under 46 A is made in respect of sum of money beyond the pecuniary jurisdiction court the court shall send the execution case to the court of the district judge to which the set court is awarded and there upon 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 has been originally instituted in that court it may so happen because of the pecuniary jurisdiction limits of the court A and B it is within the lowest grade court of the lowest grade junior division and B is liability towards C is liability towards B is for a sum of money beyond that beyond the pecuniary jurisdiction of the junior division officers court that is a month's court then the month's court in which A's proceeding is there that will be sent to the district judge district judge will transfer it to the competent court either try it or transfer it to a competent court which will decide that as if the original proceeding were the before that that is only pecuniary jurisdiction aspect now 46 D procedure where debt belongs to third person third person is D where it is suggested or appears to be probable that the debt belongs to some third person or that any third person has a lean or charged on or other interest in such debt the court may order such third person D to appear and state the nature and particulars of his claim if any to such debt and prove the same C says I have no liability towards B I awaited but that is to be I do not awaited then that question will be decided if you notice to D order as regards third person after hearing such third person please mark D and any person or person 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 here and before provided or such other order or orders upon such terms if in respect of the lean charge or interest aspects of such third or other person as it may be pit and proper or when it is when it appears that it is not seen that who is liable to be but then also this procedure can be 46 F payment by garnishing to be valid discharge payment made by the garnishing that is C or notice under 46 A or under any such order as of course it shall be a valid discharge to give as against the gentleman and any other person ordered to appear as a force for the amount paid or liable although the decree in execution of which the application under 46 A was made or the order passed in the proceeding on such application may be set aside for the use take the extreme case notice this issue to the garnishing garnishing complies with that notice he pays the debt in court for payment to A and the amount is paid to A suppose the decree under which the direction is given is set aside for variant or reversed in appeal what will happen to the payment made by C pending appeal execution can be really there is no stay A obtains a decree against B it is executable we can file an appeal it is not always possible to get a stay or there may be a conditional stay and the appellant B has not complied with that condition then the stay will go A can execute the decree pending the appeal suppose the appeal is reversed appeal is allowed and the decree is reversed then section 144 will apply restitution the parties will be put in the same position which they would have occupied but for such variation or reversal or setting aside that is 144 but here a third party's intervention is there a third party named is C is directed to pay the amount in court what will happen to that bill so far a C is concerned that is final conclusive notwithstanding that the decree may be varied or reversed then we may recover that amount from whatever do whatever is necessary is another thing after hearing such third person and other person or person may be subsequently so and so the court may make sense such order as in hearing before provided I am sorry 46 yeah I was reading 46a sorry although the decree in execution of which the application under 46a was made or the order passed in the proceedings may be sent aside or reversed even if it happens what will be all right first part of the rule payment made by the garnish you are noticing some 46a or any such order as opposed to share behavioral discharge against the general even if the decree is closed so far a C is concerned compliance with the order of garnishing is final that discharges him from his liability towards me whatever happens between the litigate happens in the litigation between A and B C is unconcerned because C has complied with the direction we should buy the code C need not worry about the subsequent allowing of the appeal and setting aside the decree which A has obtained against B what happens because the appeal is allowed A's decree against B B's appeal is allowed that means A is no decree to be executed against B then how can A realize the amount which B has to get from C cannot but it happened during the pendency of the appeal then what should be done restitution is the remedy A has received the amount which he is not entitled from whom from C C is protected C is discharged from the liability even though the decree is reversed C cannot be made liable because he has only complied with the direction by the court C you are relieved then as between A and B what happens B has to get the amount from C that amount has been paid to A restitution takes place and A will be made liable to pay the amount to B by way of restitution by we are putting back the parties in the same position which they would have occupied but for such a decree so whatever happens to the decree between A and B in the litigation between A and B that is C is unconcerned about it so it reaches a stage where in execution of a decree which A has obtained against B that decree itself vanishes still the result continues then it has to be repaired in the same proceeding under section 144 how it will be directed to pay back the amount to B that is all then the whole thing is cured in the same proceeding itself no separate suit no other worry nothing cause the cause of any application made under 46 A and of any proceeding arising therefore or incidental there to shall be in the discretion court then appeals 46 H an order made under 46 B 46 C or 46 C shall be appealable as a decree why it is wherever is in the CPC a third parties rights are determined for the first time without his being a party to the original procedure the order passed there on is deemed to be a decree and an appeal is going so that justice is provided to see if it is only an order in execution then it is only reversible not appealable but when C comes there for the first time an appeal is to be provided that is why the order passed the garnishing proceedings under 46 A 46 B 46 C and 46 E shall be appealable as it is you will find similar provisions in somewhere else also for example order to do on rule 58 objections and claims and objections to or under the scheme of rule 97 to 104 an order is passed under rule 103 order is passed under as provided under rule 101 the rule 103 provides that the order shall be appealing as if it is a decree so whenever such things happen an appeal is brought that is provided here also application to negotiable instruments the provisions of rule 46 A to 46 H shall so far as may be apply in relation to negotiable instruments attached under rule 51 as they apply in relation states so that applies to negotiable instruments as well now the other rule which may be relevant in this context is rule 52 rule 51 attachment of negotiable instruments 51 attachment of negotiable instruments when the property is negotiable instrument not deposited in a court nor in the custody of a public officer attachment shall be made by actual seizure an instrument shall be brought into court the other provision is rule 52 attachment of property in the custody of court or public office yet another provision which is also relevant along with this is order 21 rule 79 delivery of mobile property debts and shapes how it is affected where the property is sold is mobile property which actual seizure has been made what shall be done mobile property in the possession of some other person what will be done the procedure is provided in rule 79 I am not reading it and spending time on it because it is a to some extent it is to be it is very easy also now this is in short the donation I do not know why people are afraid of that this all simple but apparently difficult now next time when a party comes to you I am saying I am sorry I am not saying to say all experienced lawyers I am giving this advice to you to youngsters please don't misunderstand me I am giving all these advices to youngsters beginners so next time when a client comes to you and says that it decreased the excellent money decreased excellent you have to interact with him ask them ask him what are all the properties which JD has he says that he does not have any job therefore no salary he has no immobile property he has no bank deposits then what else he has got he has to get money from three or four of course because he had lend money he was indulged in money and therefore we has to get several debts from four or five persons that is the only asset which he has immediately it must occur to the lawyer yes there is no in spite of the fact that there is no immobile property for the victim in spite of the fact that he has no mobiles with me in spite of the fact that he has no he is not a salary person no deposits still these debts are like the process proceed against it the garnishing proceeds and the amount can be recovered easy so that explore all the possibilities in the matter of execution and enough time is granted to execute the decree under article 136 of the limitation act period of 12 years is the if it is a ordinary and if it is a decree of any nature accept article 135 if it is a decree for mandatory exemption it is three years otherwise enough time is there there are several methods the modes of execution you will get in section 51 51 is a reservoir of various powers 51 of cpc the we cannot say that the port is powerless civil court is very powerful very very powerful and when we compare with the criminal court criminal court may be able to when seen may be clothed with the power to punish a man detain a person send him to jail all those things people will ask what of the civil court civil court also has all those powers depends because here there is no punishment procedure in execution 51 powers the court to enforce execution various powers are there and all these powers are connected with various rules in orders and rules so that we have to connect various orders and rules if you are interested please note down now it said section 51 subject to such conditions and limitations as may be prescribed the court may want the application of the decree order order execution of the decree now various clauses by delivery of any property specifically please note order 21 rule 35 this is not our subject today's subject but I thought that the youngsters can be provided with this information so that it is it covers a vast area order 21 rule 35 by attachment and sale or by sale without attachment of property please note section 60 65 to 67 and order 21 rules 41 to 54 58 and 64 to 64 to I may say 100 and because that includes delivery obstruction then see by arrest and detention etc sections 55 to 59 and order 21 55 sections 55 to 59 and order 21 rules 11 a 22 and 37 to 40 clause b by appointing a receiver order 40 clause e in such a manner so these are all the powers which the executing court has a person can be detained now how now we will see what difference it makes garnishing proceedings and attachment authority I have said it I will again explain it in the case of a garnishing proceeding a has got a decree against me and B has got a debt to realize from C it has not matured into a decree so one decree another debt attachment of decree under rule 53 a has obtained a decree against me and B has obtained a decree with C that decree which B has obtained against C will be attached and execution will proceed against C for realization of the decree of A that is the difference that is all the difference then as the procedural matters there is difference not much so now let us see some of the principles and also some of the decisions yes a debt cannot be attached unless it is actually due from the garnishing actually due from the garnishing next point it may be either presently payable or payable in future by reason of a present obligation presently payable or payable in future by reason of a present obligation and existing debt though payable on a future day may be attached but an existing debt should be distinguished from a contingent existing debt can be attached a contingent that can be attached only after the contingency happens in existing debt the garnishing proceedings can be initiated but if it is a contingent debt that will be available only if that contingency happens until then there is no debt which can till that contingency happens it is not necessary for the purpose of attaching a debt that the exact amount of the debt should be stated it is not necessary for A to state that exact amount of debt which B has to recover from C it is not necessary exact amount he does not want but there must be a debt to actually deal next is the attachment of a debt does not prevent the JD from there is not proven the JD from suing the debt otherwise what will happen proceedings are in it garnishing proceedings are initiated against C suppose A discontinues C C P and the whole things the whole thing is dropped then B will be in trouble B suit will be barred so we can proceed with the suit know how we can file a suit against B even pending the garnishing proceedings does not prevent the JD from suing his debtor or from taking any other step necessary for the recovery they are off but he is not entitled to receive payment unless the claim of the decree holder is first satisfied a suit already instituted can be continued out there is no how so the garnishing proceeding does not stop B from suing C getting for getting a decree does not bar he can continue the pending suit also but only thing is that we cannot recover that amount which is payable to A that amount a decree for payment of money is not attached because it can be done only under old 50 now please say few decisions AR 1962 Supreme Court 1962 Supreme Court 1764 that is a constitution when the decision by VP Siddha CJI Justice Kajendra Gadkar Justice Ken Vajju Justice Raju Kovalayimga Justice T.R. Vangatrama here Justice Vangatrama here would be dead on behalf of the bench all very top people name of the case is Shanti Prasad Jain Shanti Prasad Jain versus Director of Enforcement Form Exchange Regulation Act please note paragraph 39 the other points are discussed we are not concerned with that we are concerned with the garnishing proceedings there it is discussed in paragraph 39 in our opinion on this condition is well founded a contingent debt it is not garnishing what is the difference between contingent debt and an existing debt that is a discussion not garnishing assets a contingent debt is strictly speaking not a debtor thought it in its ordinary as well as its legal sense and debt is a sum of money payable under an existing obligation it may be payable forthwith a solvendom in present day solvendom in present day then it is called a debt due or it may be payable at a future date solvendom future of solvendom future of then it is a debt approving but in either case it is a debt but a contingent debt has no present existence because it is payable only when the contingency happens and ex hypothesis it may or may not happen the contingency may or may not happen that is a difference between an existing debt and a contingent so far as a contingent debt is concerned a garnishing proceedings cannot be initiated that is the importance of this decision these are the garnishing proceedings a year 1975 supreme court 2254 four judges including justice krishnaya justice kete matthi justice re and justice murthasappa sir name of the case hyderabad cooperative commercial corporation hyderabad cooperative commercial corporation limited versus sehid moheeddin khada sehid moheeddin khada is sehid moheeddin khada got a decree final suit against the appellate society the cooperatives and obtained a decree decree holder prayed the eps to attach a sum of these 450,000 which the government in the budget portion has made to the cooperative society so a budget declaration has been made to pay some amount to the cooperative society the 450,000 firm spot of it that budget portion is the that was sought to be attached in garnishing proceedings whether it is a contingent debt or a present debt was the question paragraph 11 and 12 the discussion the amount of rupees 45 445 45 50,000 was not a mere budget budget portion but the documents show that the amount had ripened into a debt and in order for payment to the cooperative society the sum of rupees 45,000 was impressed with the character of a debt due to the cooperative society and it was validly attached. The contention on behalf of the state that the amount was not brought into court and therefore the portion lapsed is devolved out so it was not a mere budget portion but it was really payable the amount was with the commission of students of us and the accountant that has passed that stage and it is payable it has become a real to it is really paid this is what is held next is 1977 to a cc 77 to a cc 424 parallel citation a year 1977 34 536 3 judges Manalal Kepan and others Manalal Kepan and others versus Kedarnath Kepan and others Kedarnath Kepan and others attachment of shares and a transfer of the same in contravention of the order of attachment is dealt with in paragraph 25 this next is a 1967 Supreme Court 1080 Chauty Prasad Gupta Chauty Prasad Gupta versus Union of India attachment of mobiles not in the possession of the gentleman no actual seizure of the property what is the proper procedure to follow to sell the property under his provisions what is the proper procedure in garnish he was held the proper procedure was to sell the property under rule 64 of order 21 and then pass an order under order 21 rule 79 that is mobiles not in the possession of the judgment if it is in the possession of the judgment it or the mobile can be actually seized and sold but it is in the possession of third party what is to be done then it must be sold under rule 64 and then delivery under rule 79 discussion not under 144 145 cpc paragraph 4 a long paragraph there is a discussion after attachment has been made in the manner provided rule 46 the next step that the court has to take is to order sale of the property attached then comes order 21 rule 79 which provides that where the property sold is mobile property of which actual seizure has been made shall be delivered to the purchaser that is under 79 one but where the property sold is mobile property in the possession of some other person other than the judgment the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser that is under 79 2 rule 79 2 in the present case there was no actual seizure of property but attachment had been made under order 21 rule 46 one the proper procedure for the court was to follow was to sell the property under rule 64 and then pass an order under order 21 rule 79 2 for its delivery in the manner provided then the court however went went on asking the substitution officer to produce the property and it when it was not produced it proceeded under section 145 of the court as we agree with the high court that 145 has no obligations so what is the proper procedure when the properties in the possession of the judgment actual seizure then selling it the garnishing proceedings can be completed but it is in the possession of some other person what should be done by a prohibit reorder prohibiting him from dealing with it selling it etc then what should be done it must be sold and the procedure to be followed under rule 79 2 is what he said it may appear that it is a difficult procedure but you have to follow 2009 5 SCC 2009 5 SCC 6 6 5 parallel citation AER 2009 Supreme Court 2 3 3 0 2 3 3 0 put corporation of India versus sub dev Prasad sub dev Prasad that is said that the order is not an injunction passing an injunction order is about paragraph 8 17 and 21 that is a discussion and in a final or interim order directing payment of money is not an injunction creditor bank file a suit against a gentleman that are mortgage are at the instance of the defendant that are his tenant implanted as another defect so the mortgage are that are his suit and there was a tenant under him he was also he bladed as a defect plaintive ban claiming itself to be entitled in terms of the loan documents to receive rents of the mortgage property but defendant that are disputing the amount of the the sent circumstances it was said that the status of the sent tenant was that of a garnishing defendant and not a principal defendant direction was merely an interim prohibitly order and not an injunction application filed by the defendant that are under order pertinent rule 2 a it was held to be not needed rule order pertinent rule 2 a has no application if the order is not complied with it has to be executed in some other manner if the property is there property to be sold property actually seized sell it and get it if it is in the possession of some other person sell it and get it delivered on their own side if there is a non-compliance of the direction as the provisions in rule 46 to 46 i provides it is not order 39 rule 2 is what is held in 2009 supreme vote 23 30 now is there all the supreme vote decisions which i saw there are there is a difference different views are there with respect to jurisdictional namely whether it must be the garnishing must be within the jurisdiction of the court passing the order that is executing or if the garnishing is within the jurisdiction of some other court whether that decree should be transferred or whether the decree in which a file the suit can a degree is the is to be executed that court can do it you have to note that section 39 4 is introduced by the 1999 of CPC 39 4 says that it is not a new provision it is only a clarificatory amendment after 34 that was the provision even before but it was absent there and it was clarified that this was the position always what is 34 39 provides for transfer of degree 39 4 says nothing in this section shall be deemed to authorize the court which passed a decree to execute such decree against any person or property outside its local limits of its jurisdiction is very clear the property to be attached or the person to be arrested is within the jurisdiction of another court then the court which passed the decree and the court which is executing the decree has to transfer the decree to the court within whose jurisdiction the property is or the person is person to be asked and that is the procedure to be followed but in garnishing proceedings what should be conflicting views are conflicting even our own high court a single bench set that money due from a garnishing outside the jurisdiction of the court it is still possible to be done by the court which passed the decree division bench set otherwise these are all the different opinions I will give just to give the citations I am not explaining the different views I will just if you are interested you may go through the various high court decisions on that point jurisdiction aspect particular I will just mention 1961 kerala law times 827 eduction by 827 balki suh bigam balki suh bigam versus gun san go g o n z said a go gun san go another decision a ya 1956 travanguru kuchin tc travanguru kuchin 100 name of the case bascarapulay versus bank of kerala limit bank of kerala limit the single bench decision which I mentioned is ilr 1991 volume 2 kerala 91 volume 2 kerala 487 is reported in kerala law times also 1991 1 klt 2 double six a shogun versus ballet a shogun versus ballet then there are some other kerala decisions which I am not giving you the citation because it is not the that much help to you then one decision division bench aya 1988 kerala aya 1988 kerala 285 ilr also ilr 1982 kerala 349 executive engineer versus sarma there it is not jurisdiction it is objection was raised whether what should what is the procedure before detailed discussion is please see paragraph 8 then aya 1962 kerala 1962 kerala 233 sangaran nair versus krishnapalai then aya 2004 andhra pradesh 2004 andhra pradesh 321 aditya electronics versus as impacts limited and others as impacts limited and others aya 2003 delhi 2003 delhi 273 indoor table tennis trust indoor table tennis trust and others versus kabil kanna next aya 1984 delhi 90 vali ram versus sattvanti kaur and others vali ram versus sattvanti kaur and others then aya 1980 pacjavan haria aya 1980 pacjavan haria 146 kumari renuga bhatra versus green lace bank limited now with these materials being provided I think the fundamentals of garnishing proceedings are over and if there is any doubt to be cleared you are free to put it to the extent possible I will answer only one question has so far come at least on the globe is a garnishing defendant what happened if a garnishing doesn't pay garnishing doesn't pay yeah garnishing an order is passed if he does not obey it can be executed against you no no first is first question is is the garnishing to be considered as a defendant garnishing is even if he's a made a defendant once supreme court judgment we saw a tenant was made a defendant it is not necessary to make him a defendant because he does not come there at that time making a party a defendant is at the trial stage at the trial stage as a has a the creditor has no cause of action against the garnishing he has not obtained a decree first of all garnishing proceeding arises when a has obtained a decree against me then execution comes then these debtor can be proceed then only he his presence comes otherwise he is not a defendant he a person cannot be one example which we saw is a monguages monguages mongagers tenant was implanted as a defendant even otherwise he is a party proper party nothing wrong in including him and then it was him that garnishing executions proceedings can be proceed against him and he can be treated as a garnishing not as a party defendant that is it otherwise there is no procedure there is no it is not proper also if a file says suit against me saying that I may get a decree against me and we have got a debt to recover from see therefore I am making see also a party no it cannot be done yes and what happens if the garnishing does not pay if the garnishing does not pay it can be executed against in whatever manner it is possible as if it is a decree against me now one question is from the facebook it says garnish can attach the count from the mwc compensation award or no I did not follow the question he says whether the garnishing can get the amount attached of the motor vehicle compensation award garnishing can attach can get the can get the amount attached on the motor vehicle compensation he is not garnishing to attach that question is wrong yeah it's that's the only question no I think yeah so thank you and as Mr Sankaran had told that it's a topic very very few people in the legal journey have actually traversed through that but I think that a lot of questions can be answered in the way you have done one question one somebody is asking that he can ask himself and meanwhile you can connect tomorrow on legal limitation of government and statutory orders under the constitution of India by Mr P.B.S. Gendhar an advocate of Madras iPhone and a famous resource person he also takes his glasses in the Nalchar Judiciary Nalchar Hyderabad we are unmuting Mr Thula Simran yes yes thank you Mr Thula come on the video please I think there is some antivirus issue I'm trying I'm trying to get there okay thank you sir it is very enlightening session I have a question see usually when we file money recovery suit and then we file attachment before judgment 38 yes rule 5 rule 5 and suppose say he don't have any immobile property but I know that he has a lot of shares and a lot of bank deposits yes and can I I mean is there a provision to proceed against them like I proceed against immobile property yes that was my question it can be done and thank you very much under same provision sir to order 38 rule 5 itself okay includes not only mobile property but other property also we will verify now itself okay what a 38 rule 5 we will put that question we will verify that yes and I mean in furtherance to rule 5 to 48 where at any stage is the court is satisfied so it's about to dispose of the whole or any part of his property property includes everything and what is a dispose when it comes to FDs shares those things how can you interpret to dispose expression dispose here dispose of it has got several the bird assign is not used to dispose anyway it can be disposed can be disposed of by saying can be disposed of by mortgage by letting in somebody else or fragmenting it whatever manner it is being disposed of okay it has got a larger being larger meaning and I know need to show you the proof on that I can say that he is trying to dispose is that okay yes okay sir one more practical question I got order 38 rule 5 I got the order and they told go ahead and issue the notice to the defendant meanwhile go ahead and attach the property next visit he came and filed a call and he brought some other security some other friends property for which I said no and then Honourable Judge wrote that we are requesting to furnish only respondents property and then after that he didn't show up my legal question here is order 38 rule 5 once it is given if defendant do not show up for any reasons or dragging I thought that order itself will become permanent is that true after 48 hours I did not understand the last portion I got an order under order 38 rule 5 yes and the notice is given to him and then I I already kept the schedule property to go ahead and attach it they told go ahead and attach meanwhile yes he came on the next hearing with the work out and fight and he brought other property for which I said no it is some others property he is it is mere trick to defeat the court and yes yes so please furnish this property alone then he asked for the time and he didn't show my technical point here is is that order got affected now or I should again go ahead and plead to effect it now the attachment must be done by provided it must be so I go ahead and apply for CA copies and serve on the register okay yes okay so once it is given yes it is attached okay thank you very much sir I am thankful to you so the last question by Chandrasekhar Rao is it necessary to we should notice before attachment in case of a gun against a Garnishi yes Garnishi that is a notice will be first it should be calling upon him why not he pay them off to CA or answer appear and shock us why it should not be the reasons for attachment proposed attachment should also be given yes because he shouldn't be cropping in the dark of what that notice has to go correct correct and after it must be there yes and after it must disclose all the necessary details the rule itself says so if you can sum it up before we part for the day what would be the exact procedure if you start off that a notice an order then notice how do you go about it what is the procedure aspect procedure is say first a notice will be 45 order 21 rule 46 a a notice will be issued 46 a I will just verify 46 a notice to Garnishi will be there calling upon him either to pay into court the debt due from him or to shock appear and shock us is the first step the application the question put by Mr. Vikas Chatur that everything should be disclosed yes it is specifically provided in sub rule 2 of rule 46 a that an affidavit shall be filed stating all the necessary facts 46 a to then the Garnishi may obey it or not obey it 46 B is the next step an order will be passed by the court then that will have 46 B will have the effect of it if he disputes the liability that decision that question will be decided under 46 C 46 D third persons an order will be passed under 46 C all these orders are appealable as it is said yes one minute yes I forgot to plug on yes sir that was all the question so thank you sir yes it was what on we discussed one hour maximum 130 and we have done because you have fixed it time no no I only say I have I have experienced that people always want the time and especially when the court courts have started physical as well as very virtual so they want that we should have a crisp nobody notice wants the five day match everybody wants a yes yes correct when we do it see that has to be done within that start correctly close yes now even the honorable supreme court has said that you should make your submission in a 30 minutes maximum time span along with three pages short move so they said do in Rome as Romans do yes sir thank you everyone thank you very much thank you thank you tomorrow we will connect that by 30 okay