Site in the name of the mother, she was a teacher, she has bought the site with her own money, she has 3 sons all are working and living in US., The building was constructed using 2nd son's NRI money. Do the sons have rights in this property? Mother is selling the property, Does she has all the rights to sell the property? Do we need get some sort of an NOC from sons? like Ratification Deed or so? Is it needed ? Husband is alive. we are planning to buy this property(individual house 12 years old) , what are the legal documents we need to look for in this scenario. Property is in Bangalore, Both mother and father are senior citizens.
ADVICE:- Under Hindu Succession Act Property of female Hindu is her absolute property. In your case it may be possible that they may take a stand that, it is treated as Hindu Joint Family property, created out of joint contributions of all. If there is any evidence as to contribution of her son then take NOC from that son that the contributions he made is out of love and affection and not as a Joint Family Property.
Regarding Documents Required to purchase a property in bangalore depends upon each case to trace its title.
1. RTC of the land in which the site comes (From 1968-present day). This is needed to verify whether land is affected from any PTCL act provisions, or from any Land reforms provisions etc. If such documents does not disclose preliminary title then Index of lands and other documents are required. Hence i said it all depends upon each case.
2. The DC conversion certificate duly verified from the concerned office.
3. The layout approval from the planning authority.
4. Building Plan approval from the local authority.
5. The upto date tax paid reciept from the local municipal bodies. And also khatha extract.
6. Form 3/ Form 10/ Form 9 depending upon particular cases.
7. Encumbrance on the land which can be best advised after verifying records.
8. Affidavit from her sons stating the land and building is her self acquired property.
9. If the property comes beside railway line, or National Highways then NOC from Railways/ NHAI is must before building constructions.
10. The preliminary title to be verified because bangalore is witnessing so many land frauds. (To satisfy -land is not govt land)
For Registration requirements of documents are simple but for legal verification of title it is laborious task depending on each case.
HINDU SECTION ACT SECTION 14. Property of a female Hindu to be her absolute property
(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
CONTENTS OF THIS BLOG
- WHEN MY PROPERTY IS ATTACHED FOR DEBTS OF MY VENDO...
- A DISPUTE REGARDING RTC ENTRY AND RIGHT TO INFORMA...
- A QUERY ON KHARAB LAND- WASTE LAND- REVENUE EXEMPT...
- women's right to property
- A REPEATED QUESTION IS BEING ASKED WHETHER IAM ELI...
- INJUNCTION SUIT AND DEFENDANT LEGAL REPRESENTATIVE...
- BUILDING PURCHASE IN BANGALORE WHAT DOCUMENTS WE H...
- ▼ August (7)
can we bring legal heir's of deceased defendant in bare injunction suit? if no, is there any citation ruled by any state's courts?
Ramachandra vs Laxmana Rao AIR 2000 Kant 298, ILR 2000 KAR 2341, Section 146 of the CPC. This provision reads: "146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". On an analytical reading of Section 146, one legal position which clearly emerges is that where any legal proceeding may be taken or an application for a legal proceeding may be made by or against any person, then, that proceeding may also be taken or application for the same may be made by or against any persons claiming under him. This provision deals with legal proceedings by or against representatives of the parties to a dispute or to a decree or final order of any competent Court. Its operation is general in nature, except that it is circumscribed by the beginning saving clause "save as otherwise provided by this Code or any law for the time being in force".
The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company Limited, AIR 1955 SC 376 has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said: "The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".
Karnataka High Court has held in Hajaresab -v.- Udachappa, since deceased by his L.Rs., and others. ILR 1984 KAR 900 " Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's Case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison cannot be enforced in the case of the legal representatives at all."
It is very strange to see that The Income Tax appellate tribunal in New Delhi has understood the implications of Karnataka Land Reforms in below stated words but our Revenue Department Officials are showing intellectual blindness : In M.V. Chandrashekar (Huf) vs Asstt. Cit, Circle 4(1) on 29 September, 2005 Reported in 2006 5 SOT 960 Delhi, As per the Karnataka Land Reforms Act, 1961, the purchase of agricultural land by the following persons is prohibited under section 80 of the Karnataka Land Reforms Act:
(1) One who is not an agriculturist
(2) One being an agriculturist holds land exceeding ceiling limits (54 acres - 'D' Class land)
(3) One who is not an agricultural labourer
(4) One whose annual income from non-agricultural sources exceeds Rs. 50,000 (earlier the limit was Rs. 12,000) the same has been increased through KLR (2nd Amendment) 1950 Karnataka Act of 1991 with effect from 5-2-1999). New limit 2 lakhs.
In Moulasaheb Lalesaheb Mulla vs Aminsha ILR 1992 KAR 247, It is observed that:- “Therefore, we have independently examined the scope of Section 79A(1) of the Karnataka Land Reforms Act. Under Sub-section (3) thereof acquisition by a person who has assured income of Rs. 12,000/- or more per annum from sources other than agriculture would not be entitled to sustain such acquisition and as such the acquisition would be null and void. Though Sub-sections (3) and (1) read together do convey that impression, such acquisition is not ipso facto null and void. It will become void, only when action is initiated suo moto or on the complaint of others as provided under Section 82 of the said Act and after enquiry being held by the specified officer under Section 83 of the Act if a declaration to that effect is made……………………………….The provisions of the above quoted Section were discussed by this Court in Shivannappa Sidramappa Prantur v. Virupaxappa Allappa Bagi as also in other Judgments referred to above. Under Sections 82 and 83 of the Karnataka Land Reforms Act, after completion of sale it is incumbent on the village officer and every officer of the revenue, registration and land records to report to the prescribed authority i.e., the Assistant Commissioner of the Division about the transaction in respect of any land which is in contravention of the provisions of this Act, and, it is on such report, the Assistant Commissioner is required to make an enquiry regarding the illegal transaction…………………………… Assistant Commissioner ……………… gets his jurisdiction only when the sale is complete and the illegality is reported under Section 82 of the Act. By implication it is not possible to confer jurisdiction which is not envisaged by the Statute.”
The Hon’ble High Court of Karnataka while rendering its decision in the case of Gowtham Tendulkar vs State of Karnataka reported in 2001 (2) Kar LJ 485 has held that provisions of section 79A and 79B results in serious consequences depriving a person of his right to enjoy his property and is in the nature of penalty and that it is obligatory on the part of the Revenue Officer to confirm that requirements of the said provisions are strictly complied with.
In a case before KAT in Manjunath vs The Assistant Commissioner Mysore in APL 400/2009 decided on 21-08-2009 by Hon’ble A. Ramaswamy and N.K. Sudhindra Rao it is observed as follows:- Appellant ………… submitted certificate showing his annual income was 70,000-00………… The Certificate bears the heading Jati / Adaya Pramana Patra and has been issued by the Tahsildar, Mysore Taluk. The Karnataka Land Reforms Act has stipulated that the certificate that the income as assessed to Income Tax under Income Tax Act 1961 should be filed for a period of 5 years preceding the date of sale and the average of five years has to be taken to arrive at a conclusion whether the income is within the stipulated limit or otherwise. The certificate of Tahsildar is of no use as far as the case is concerned”….. “It is pertinent to note that appellant having purchased the lands in question for 11,37,500/- claims that he is an agriculturist and does not account for the income from the agricultural sources bifurcating the same from the non agricultural sources………… It is also necessary to point out that the appellant is silent to mention about the status of the lands in question as on 01-03-1974…………. Not explained the sources of income…….. documents filed by the appellant which is a copy of the declaration U/s 81-A has to be taken into consideration and its validity and relevance to the case on the hand has to be discussed and gone into carefully………. “
The Supreme Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance - State of Haryana v. Karnal Distillery Co. Ltd. (1977) 2 SCC 431, Vijay Kumar Kathuria v. State of Haryana (1983) 3 SCC 333, Welcome Hotel and others v. State of Andhra Pradesh and others etc. (1983) 4 SCC 575, G. Narayanaswamy Reddy (dead) by LRs. and another v. Government of Karnataka and another (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by LRs. and others (1994) 1 SCC 1, Agricultural and Processed Food Products v. Oswal Agro Furane and others (1996) 4 SCC 297, Union of India and others v. Muneesh Suneja (2001) 3 SCC 92, Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12 SCC 481, G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141. When Supreme Court is implementing such principle of law, then false set of material facts disclosed / declared by a person in order to violate the land reforms act should be thrown of this society itself .
LAND REFORMS CASE OF Vijayakumar Shankarayya Sardar vs State Of Karnataka ILR 1993 KAR 2586 Karnataka High Court held that “For proper appreciation of the matter, the provisions of Section 79A of the Act can be read as follows:- "On and from 1st March 1974, no person who or a family or a joint family which has an assured annual income of not less than rupees Fifty thousand (RS TWO LAKH AT PRESENT) from sources other than Agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another."
KARNATAKA GOVERNMENT CIRCULAR INSTRUCTIONS IN NO: RD 106 LRA 98 Dt 11-09-1998, Village Accountant…………. should be vigilant and make enquiries immediately. It is his duty under the statue to make a report to the Tahsildar, so that he may hold enquiry and recommend the Assistant Commissioner concerned to initiate action regarding the illegal transaction. But the officials at the lower levels, though making entries in the Revenue records and they are being certified and confirmed by the experienced officer like Revenue Inspector, they are not being reported promptly. They are being reported at a later stage. Thus, the parties are trying to take advantage of it. Further, the K.A.T. has observed collusion between the purchaser of the agricultural land and officials at the lower levels in the Revenue Department. The Karnataka Appellate Tribunal have also come across several cases wherein the parties sell the lands purchased by them when they come to know that there was no acquittal from losing the land for violating the provisions of the Act, so that the purchaser takes benefit of that and prolong the proceedings………………………………………………….. And in this context, the Karnataka Appellate Tribunal have desired that the Revenue Department issue a circular to its officers to ensure that the Village Accountants take entries in R.T.C. regarding initiation of enquiries by the Assistant Commissioner concerned for violation of the provisions of the Act so that it gives a warning to the purchasers……………………………………………………………… The Deputy Commissioners are instructed to fix responsibility on the village Accountants and Revenue Inspectors and take up Departmental Enquiries against them for lapses in this regard……………………………………………. During the proposed workshop of the village Accountants as directed under the Circular No: RD 100 LRA 98, dated: 06-08-1998 rigorous steps should be taken suo moto, for identification of violation cases and intitiate necessary action as per law.
Dear Sir ,
I came across your website .
I would like your opinion on a piece of land that my friend owns .
He had 10 guntas of land along with 10 guntas of karab 'a' land .
He later got the entire 20 guntas converted for residential purposes by paying
Rs 2 lakhs to the government for the conversion of 10 guntas of karab 'a' land
however in the conversion certificate , it has been mentioned that this karab 'a'
land will always belong to the government .
Later he approached the DC and again applied for correction of this point in the
conversion certificate , now in the new certiicate it mentions that by mistake they
have mentioned this point and it has now been amended that karab 'b' land will always
belong to the government .
He has also got the khatha certificate from BBMP for the entire property .
My question to you is since in his pani certificate his land has been mentioned as 'a' karab ,
will he be able to sell his property .
your kind opinion on this subject will be very much appreciated .
The below quoted extract of Judgement of High court of karnataka will explain you on trhe subject and your 'a' kharab land belongs to the owner of property. Sadashivaiah And Ors. vs State Of Karnataka And Ors. ILR 2003 KAR 5088
Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption, Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is included in an assessed survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number.
In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined thus:
"(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number".
The description has no relevance to ownership. The expression put kharab is explained in Gupte's book on the
Bombay Land Revenue Code in the following words at page 278"-
"By the term 'pot kharab' is meant 'barren or uncultivable land included in an assessed survey number' and includes 'any land comprised in a survey number. Which from any reason is held not to be likely to be brought under cultivation..........."
31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation.
After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under-
"during the process of classification, land included as unarable shall be treated as "Pot Kharab". Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;
(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries."
32. Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land.
Kindly advise me abt land case,
The court case which is in the court since 1976-77.
it is tribunal case area karwar, Uttar Kannada district, Karnataka state.
whenever we are asking tribunal office says evry time that there is no comittee selected so case could,t appear for hearing.
we came to know that karnataka govt already issued notice for tribunal court. but even than action are not taken.
we want to know that how and where which department we can ask abt the same. or shall we ask in the "Right of information Act" to whom which dept will u please help us.
from 1976 to 1990 two judjement had come from high court and case has been disolved even then opponent wrong way taken their name on land records. and all tax receipts we had from 1966 upto 1977 and many more years.
we all are ladies don't know proper kannada, staying with husband in Mumbai and old and illlitrate mother staying at village. we are asking our advocate to do some under Right of information act. he says it,s not applicable to this type of case,which falls under land tribunal act.
can u tell us what to do.?
RIGHT TO INFORMATION ACT APPLICABLE TO EVERY GOVT OFFICE AND TRIBUNAL YOUR ADVOCATE HAS WRONGLY INTERPRETED IT.
YOU FILE RTI APLICATION BEFORE DEPUTY COMMISSIONER SEEKING INFORMATION ABOUT CONSTITUTION OF TRIBUNAL
YOU FILE APPLICATION WITH ASSISTANT COMMISSIONER OFFICE SEEKING INFORMATION ABOUT YOUR CASE BY ASKING FOLLOWING DOCUMENTS BY QUOTING CASE NUMBER
1. ENTIRE ORDER SHEET OF THE CASE.
2.ENTIRE DOCUMENTS FILED BY BOTH THE PARTIES.
SEE TO THE DOCUMENTS WHETHER ENQUIRY IS CONDUCTED OR NOT IN THE CASE.
IF YOU ARE HAVING PHANI ENTRY OF YOUR ANCESTERS NAME IN TILLERS COLUMN NUMBER 12 THEN DO NOT WORRY ABOUT THE SAME, THE LAND WILL VEST WITH GOVERNMENT.
WHAT STEP YOU HAVE TO TAKE REGARDING PHANI ENTRIES
FILE AN APPLICATION BEFORE TRIBUNAL SEEKING STAY OF PHANI ENTRY BY SHOWING THAT THE ENTRY MAY BE MIS-UTILISED TO SELL AND SUCH STAY OF IT SHALL BE ENTERED IN RTC. PLEASE SEE APPLICATION FORMAT AND CHANGE THE FORMAT TO SUIT YOUR CONVENIENCE.
CASE LAW FOR YOUR CASE AND DOUBTS
Thunga Bai And Ors. vs Vishalakshi Heggadthi And Anr. ILR 1975 KAR 739, 1974 (2) KarLJ 484
The Karnataka Land Reforms Act, 1961, (hereinafter called the Act) came into force on 2-10-1965. The object of the said Act, inter alia, is to terminate the relationship of landlord and tenant and to confer ownership rights on the tenants. Landlords are prohibited from evicting their tenants. Section 14 of the Act permitted resumption subject to the terms and conditions laid down therein. Section 14 has now been deleted by the Karnataka Amendment Act No. 1 of 1974. Section 25 provides for surrender of lands held by a tenant. The said section, before it was amended by Karnataka Amendment Act No. 1 of 1974 read thus:
"25 Surrender of land by tenant:--
(1) No tenant shall surrender any land held by him as such, and no landlord shall enter upon the land surrendered by the tenant, without the previous permission in writing of the court.
(2) Permission under Sub-section (1) shall be granted if, after making such inquiry as may be prescribed, the court is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which landlord could have resumed from his tenant under Section 14; in other cases, the permission shall be refused....."
By Section 25 a bar was imposed against surrender of any land held by a tenant without the previous permission in writing of the 'court'. The Court can grant permission after making enquiry if it is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which the landlord could have resumed from his tenant under Section 14. The section further barred the landlords from entering upon the land surrendered by their tenants without the previous permission in writing obtained from the Court. Thus there is a prohibition against surrender of any land by a tenant and a further prohibition against the landlord from entering upon the land surrendered by the tenant, without the previous permission in writing of the Court.
In the case of Nagappa Devanna v. Venkataramana Thimmanna and Anr. 1978(1) Kar. L.J. 70 (DB), wherein this Court held that: What is relevant for the purpose of the Act and the determination by the Tribunal is whether the lands in respect of which proceedings are taken under Chapter III were tenanted lands being cultivated personally by the alleged tenants immediately prior to 1-3-1974. If there was any dispossession after 1-3-1974 by the landlord or by the main tenant or a sub-tenant, it is wholly immaterial and will not affect the right of the tenant personally cultivating the land immediately prior to 1-3-1974.
I am Raju from Andhra Pradesh.I purchased a land on the basis of sale deed.The sale deed did not registered.Sale deed wrote on a 10Rs(ten rupees) stamp paper.after 6 months of purchasing the land vendor was died.than i appeal in the court to register the land by vendors wife and his daughters.court has given a decree to register the land.than vendors wife and daughters registered the land to me.But vendor has to give money to another person Murthy.Murthy attached on this unregistered sale deed.Murthy attachment is first.After murthy attachment i gone to the court for registering my unregistered land. Now i have registered documents. Is any right to Murthy to attach on my property.shall i go for any defamation on murthy.
Sir i am requesting you to tell me hot save my land from that attachment.Is there any example cases like this type of cases.This is in the final stage.send your sugestion as early as possible.please sir.
CONSULT YOUR LOCAL ADVOCATE WITH YOUR DOCUMENTS AND THIS INFORMATION HE WILL GUIDE YOU PROPERLY AFTER VERIFYING YOUR DOCUMENTS
Garnishment is a judicial proceeding in which a creditor asks the court to order a third party who is indebted to the debtor to turn over to the creditor any of the debtor’s property held by that third party .
The word ‘Garnish’ is derived from an old French word ‘garnir’ which means to warn or to prepare . It is to serve an heir with notice i.e. to warn of certain debts that must be paid before the person is entitled to receive property as an heir.
Garnishee means a judgment-debtor’s debtor . He is a person or institution that is indebted to another whose property has been subject to garnishment. He is a person who is liable to pay a debt to a judgment debtor or to deliver any movable property to him. A third person or party in whose hands money is attached by process of court; so called, because he had garnishment or warning, not to pay the money to the defendant, but to appear and answer to the plaintiff creditor’s suit .
Garnisher is a judgment-creditor (decree-holder) who initiates a garnishment action to reach the debtor’s property that is thought to be held or owed by a third party.
A garnishee order is an order passed by an executing court directing or ordering a garnishee not to pay money to judgment debtor since the latter is indebted to the Garnisher (decree-holder) . It is an order of court to attach money or goods belonging to the judgment debtor in the hands of a third person. It is a remedy available to any judgment creditor; this order may be made by the court to holders of funds (3rd party) that no payments are to make until the court authorizes them. The third party is known as garnishee and the court order is known as garnishee order. The purpose of the order is to protect the interest of the creditors. An order served upon a garnishee requiring him not to pay or deliver the money or property of the debtor (defendant) to him and / or requiring him to appear in the court and answer to the suit of the plaintiff to the extent of the liability to the defendant
Order 21 Rule 46 A to 46 I have been newly inserted in the Code of Civil Procedure by the Amendment Act, 1976. They lay down the procedure in garnishee cases. Prior to amendment, opinion expressed by various Courts was that the Court had no power to compel a garnishee to pay debt in Court and in case a garnishee on appearance denied the debt, it was duty of the Court to enquire that if debt was due and when garnishee was held liable to pay, except on certain contingencies, it was not permissible to call upon him to pay the amount into Court . The object of newly inserted Rule 46A is to render the debt due by the debtor of the judgment debtor available in execution to the decree holder and not to drive him to a suit. The primary object of a garnishee order is to make the debt due by the debtor of the judgment debtor available to the decree holder in execution without driving him to the suit. The court may, in the case of debt (other than a debt secured by a mortgage or charge) which has been attached under Rule 46, upon the application of the attaching creditor, issue a notice to garnishee liable to pay such debt, calling upon him either to pay into court the debt due from him to the 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.
In Kazim Jawaz Jung v. Mir Mohamad Ali Jaferi and Anr, AIR 1972 AP 70 the Appellant is the debtor of judgment debtor. He was directed to deposit in Court amount payable to judgment debtor as required by decree holder. The appellant disputed his liability with regard to amount due to judgment debtor. He contended that the final decree with regard to liability amount has not been passed yet and therefore the impugned amount becomes payable only when judgment debtor allots land to appellant. Thus, the appellant is not liable to pay any amount before allotment of land by judgment debtor. The Hon’ble Andhra Pradesh High Court held that where the judgment debtor himself is not entitled to recover amount from appellant then decree holder has no right to recover amount from appellant.
In Mackinnon Mackenzie and Company Pvt. Ltd. v. Anil Kumar Sen and Anr, AIR 1975 Cal 150 the question which came up for consideration is that if the garnishee denies that any sum of money is due to the judgment-debtor whether it is open to the court to hold the garnishee liable for the claim made by the judgment-debtor without raising and trying an issue on the question of such liability. The Hon’ble Calcutta High Court held that the Judge has a discretion under the Rule to, make an order summarily or to settle an issue and try the same on evidence. No doubt the order contemplated by the Rule is a discretionary one, but such discretion must be judicially exercised. Where a Judge finds that a claim is bona fide disputed and the dispute is not frivolous, he should not rush to a conclusion on the affidavit evidence having regard to the requirement of the Rule. A garnishee order which enables a judgment-creditor to obtain satisfaction of his claim in a summary proceeding is a matter of procedure, similar in scope as in the case of a judgment on admission under Order 12 Rule 6 of the Civil Procedure Code or the summary procedure in suits to recover debts or liquidated demands as prescribed in Chapter XIII-A of the Original Side Rules. This procedure can be availed of by a decree-holder where either the debt is not disputed or the dispute appears to the Court to be frivolous and without any substance. It is of no avail in a case where there is a substantial bona fide dispute with regard to the debts sought to be attached.
In Executive Engineer, KSE Board v. J H Sharma, AIR 1988 Ker 288 the garnishee appeared in court in response to the letter and filed a counter-affidavit, raising certain objections. It was held that since he had raised his contentions in counter-affidavit, the same could be treated as objections contemplated under O 21 R 46 C even in the absence of formal notice under O 21 R 46 C to order that the disputed question be tried as an issue and to decide the issue. In the impugned orders, the court below did not consider the merits of the dispute raised by the appellant.
In Surinder Nath v Union of India, AIR 1988 SC 1777 The garnishee order was for a fictitious sum of Rs. 8, 56,377.55 which was not mentioned in the show cause notice issued under Section 226(3) of the Income Tax Act, 1961. The Hon’ble Supreme Court held that there can be no doubt that when an order is made for the payment of a fictitious sum without giving any opportunity to a person, against whom the order is made, to show cause against the passing of such an order for the said sum, the order is a nullity. The garnishee order that was passed was a nullity and any sale held pursuant to such an order is also a nullity irrespective of its confirmation. In view of the conduct of the firm and/or its said partner, they should share along with the Revenue a part of the compensation that may be allowed to the auction-purchaser. The Revenue shall see that the said amount is refunded back to the auction-purchaser. Further, the auction-purchaser will be entitled to get interest on the said amount at rate of fifteen per cent for a period of two years and a half, during which the amount remained blocked, by way of compensation.
In Syndicate Bank v. Vijay Kumar, (1992) 2 SCC 330
while furnishing bank guarantee in favor of high Court customer furnished two fixed deposit receipts duly discharged to the bank and authorized the bank the custody of the receipts and renewals thereof. The Hon’ble Supreme Court held that it becomes a general lien. Bank can set off liability of the party against the receipts. If the fixed deposits are attached to bank garnishee has to go to the court. The balance after adjustments of bank’s claim shall be available to satisfy the decree.
In K Jayaraman & etc. v. TS Ravi & Ors, AIR 2001 Mad 422 garnishee obtained possession from the lessee giving undertaking to pay agreed compensation, in the suit filed by the creditor; direction was given to the garnishee to deposit the amount in the court. In the instant case, TIDCO has acquired the lands belonging to the salt department of government of India and has agreed to pay compensation due to the salt department and its lessees. Transfer of entire land has also been made by the salt department to TIDCO in pursuance of the order dated 6-1-1999 by the government of India. Conditions under which transfer has been affected in favor of TIDCO by the government of India are to the effect that TIDCO shall pay compensation agreed by it to the lessees who have been made to prematurely surrender their leasehold rights. Further it was a condition that the salt commissioner shall not be dragged to any proceedings in court in respect of the amount payable to the lessees and it is responsibility of the TIDCO to meet all Claims.
In Global trust bank Ltd. v. Fargo Frieght ltd. & ors, AIR 2002 Del. 13 the Hon’ble court held that it applies not only to a debt other than a debt secured by a mortgage or a charge, which has been attached under Rule 46 of Order 21 but also to a debt under a negotiable instrument. The foundation of a garnishee proceeding is an attachment under rule 46(1) of Order 21 of the Code. At the most it can be said that orders, which were passed, are akin to attachment proceedings under which by operation of various interim orders the appellant had been directed to keep the letter of credit alive. But the question in this instant case is that whether mere attachment would entitle and enable the Court to otherwise make a direction for the payment of the amount, without adjudicating upon the case set up by appellant that for various reasons it is not liable to pay the amount. It has also been noticed above that the appellant is seriously disputing its liability under the letter of credit to pay. Rule 46B of Order 21 of the Code says that when the garnishee does not forthwith pay into Court the amount due form him and fails to appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice. Rule 46C of Order 21 lays down the procedure when the garnishee disputes indebtedness to the judgment debtor or alleges that the debt is not an attachable debt. The Court must order an issue to be raised and tried. Even if there is a reasonable doubt the matter should be tried. The garnishee is required to make out a prima facie case before an issue as to his liability may be ordered to be raised; In other words he would disclose facts from which a reasonable inference may be drawn that there is a valid dispute as to his alleged liability.
In Greater Cochin development Authority, Kadavanthara v, harrisons Malayam Ltd. & Anr , AIR 2002 Ker. 119
A Notice was issued to call upon the defendant to show cause against the prayer of the plaintiff in his application. However, notice was not issued in form No 5. The Kerala High Court held that since the purpose of form 5 was achieved in substance, the order will not be liable to be set aside on that ground. A comparison of form No 5 was made with the prohibitory order which actually served on the garnishee. It revealed certain differences such as in the prescribed form the direction was “to the above named garnishee and to affix at the court house” the mention of the direction to the defendant to furnish security was not available in the impugned order and direction in the impugned order was to the garnishee prohibiting or restraining him from making the payment of specified debt or any part thereof to any person whomsoever or otherwise than the court and form no 5 envisages direction to the Amin to call upon the defendant to furnish security. However, in the absence of any particular form prescribed by the law, whereby the amin, to whom the warrant in form No 5 is addressed, should call upon the defendant to furnish security, the court resorted to issuance of separate notice calling upon the defendant to show cause against the prayer in the application which mentions of security as well, there was no illegality. By issuance of separate notice the court achieved the purpose of the former portion of the form No 5 in substance.
In Bombay Stock Exchange v. Jaya I. Shah and Anr, AIR 2004 SC 55 the Hon’ble Court held that the assets belonging to the defaulted member cannot be attached in Garnishee proceedings since it is not a debt due by the Exchange to the defaulted member.
In State of Bikaner and Jaipur v. Additional Dist. & Sessions Judge, Jodhpur , AIR 2005 Raj 246 the Hon’ble Court held that it is clear from Sub-rule (1) of Rule 46 of Order 21 itself that an attachment can be issued against the debt, share and other movable property not in the possession of the judgment-debtor. The court may pass appropriate order restraining the person holding the debt or share in the capital of any corporation to not to pay or disburse the amount. The Rule 46B also provides that what type of order can be passed against the garnishee. It only says that the executing court can pass the order against the garnishee to pay into Court, "the amount due from him to the judgment-debtor". The Rule 46D provides the what procedure should be adopted when it is claimed that the debts belongs to some third person, or that any third person had 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. All the provisions referred above clearly reveals that the executing court has been given power to recover any of the amounts of the judgment-debtor, which is in the hands of other. The court has no power to issue order or direction to anybody, may it be usual financier of the judgment-debtor, who is not holding any money of the judgment-debtor to pay to satisfy the debt or decretal amount for the judgment-debtor, may it under assumption the garnishee is able and can recover the amount from the judgment-debtor or the judgment-debtor will pay to the garnishee. The court further held that the executing court appears to have not looked into the relevant provision of law to find out for what type of order can be issued against the garnishee. The court held that the order of the executing court violates the Rule 46B of Order 21 CPC, which authorizes the executing court to direct the garnishee to pay the "amount due from him (garnishee) to the judgment-debtor".
In Uttar Gujarat S.R.V. Sangh Ltd. V. Mehsana District Central Co-op. Bank Ltd. and Ors , (2008) 11 SCC 492 Ex-parte garnishee orders were issued against the appellant by the Ahmedabad Board of Nominees. Pursuant to the order of restraint passed by the Board of Nominees, Ahmedabad Division, the present appellant was restrained from giving or making payment to defendant No. 1. Though appellant was a party in the Special Civil Application, the matter was disposed of without hearing the appellant. In the Review Application the learned Single Judge of the High Court proceeded on entirely erroneous premises. The ultimate result is that the appellant, without getting an opportunity of being heard and/or presenting its case has been saddled with the liability. Therefore, the Hon’ble Supreme Court set aside the impugned order and remits the matter to the High Court for fresh disposal in accordance with law.
In Food Corporation of India v. Sukh Deo Prasad , AIR 2009 SC 2330 the Hon’ble Supreme Court held that the Garnishee proceedings are governed by Rules 46 and 46A to 46F of order 21 of the Code. Sub-para (1) of Rule 46 A provides that 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, the court may issue notice to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due from debtor or to appear and show cause why he should not do so. Rule 46B provides that where the garnishee does not forthwith pay into court the amount due from him to the debtor and does not appear and show cause in answer to the notice, the court may order 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. Rule 46C provides that 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. It would thus be seen that the amount due by a garnishee, if disputed has to be determined as if it was an issue in the suit and the court can appropriate order determine the extent of liability of the garnishee. In this case, there was no adjudication of the amount payable by FCI. Whatever amount that was due in pursuance of the order dated 27.5.1996 in regard to one go down taken on lease in June 1994, was deposited by FCI and the plaintiff bank at whose instance the order was made has no complaint or grievance.