[1955] EACA 1
The court held that, in accordance with Order 21, rule 47 of the Civil Procedure (Revised) Rules, 1948, and supported by Indian and English authorities, notice must be given to the judgment-debtor before attaching money in court. The correct procedure is to issue a rule nisi, requiring the judgment-debtor to show...
Source-derived case information.
- Citation
- [1955] EACA 1
- Parties
- Plaintiff: Rehmat Khan; Defendant: Abdul Karim
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Civil Suit No. 9 of 1954
- Procedural Posture
- Civil Suit / Ruling on Execution Application
- Outcome
- Application granted in part; rule nisi to issue to the judgment-debtor.
- Judges
- Cram J
- Legal Topics
- Attachment of Money in Court, Notice to Judgment Debtor, Rule Nisi, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rehmat Khan
Plaintiff
Abdul Karim
Defendant
Procedural Posture
Civil Suit / Ruling on Execution Application
Legal Issues
- 1 Is notice to the judgment-debtor essential before attaching money in court under Order 21, rule 47?
- 2 Should a rule nisi issue to the judgment-debtor to show cause why the sum should not be paid to the decree-holder?
Ratio Decidendi
The court held that, in accordance with Order 21, rule 47 of the Civil Procedure (Revised) Rules, 1948, and supported by Indian and English authorities, notice must be given to the judgment-debtor before attaching money in court. The correct procedure is to issue a rule nisi, requiring the judgment-debtor to show cause why the sum in the hands of the court should not be paid to the decree-holder. This ensures due process and protects the interests of the judgment-debtor, aligning with established practice in garnishee and charging order proceedings. The property remains in court custody until the rule is discharged or made absolute.
Court Disposition
Application granted in part; rule nisi to issue to the judgment-debtor.
Orders
- A rule nisi shall issue to the judgment-debtor to show cause why the sum in the hands of the Court should not be paid over to the decree-holder.
- The property in the hands of the Court shall be held until the rule is discharged or made absolute.
Full Case Text
Judgment text and source record
15 paragraphs
## ORIGINAL CIVIL
Before CRAM, Ag. J.
### REHMAT KHAN, Plaintiff
#### $\mathbf{v}$
# ABDUL KARIM, Defendant Civil Suit No. 9 of 1954
Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 21, rule 47—Application by decree-holder to attach sum of money in hands of Court due to judgment-debtor—Whether notice to judgment-debtor essential -Whether rule *nisi* should issue.
The decree-holder applied in writing to attach the balance of a sum of money in the hands of the Court, the balance of the proceeds of a property sold under decree of the Court in another suit and prima facie due to the judgment-debtor. The Registrar referred the matter before a Judge in Chambers to determine whether notice should be given to the judgment-debtor.
Held (10-3-55).—The proper order was a rule nisi to issue to the judgment-debtor to show cause why the sum in the hands of the Court as a result of the decree in the other suit should not be paid over to the decree-holder.
Case cited: Brereton v. Edwards, (1888) 21 O. B. D., 488 C. A.
Referred to: Chitaley and Rao, Code of Civil Procedure, 5th edn., p. 2358.
### A. R. Kapila for applicant.
RULING.—The decree-holder in this suit applies by way of execution to attach a sum of money said to be in Court, being the balance of the proceeds of a property sold under decree of the Court in another suit. The short point at issue is whether notice to the judgment-debtor is necessary.
In England, the practice in like cases is to apply for a charging order *nisi* and the judgment-debtor is called upon to show cause why the sum in the hands of the Court should not be paid over to the decree-holder (Brereton $v$ . *Edwards*, (1888) 21 Q. B. D., 488 C. A.). The analogy with garnishee proceedings is plain.
The Kenya rule is to be found in Order 21 at rule 47 which for the present purpose is identical with the Indian Civil Procedure rule 52 of Order 21. According to Chitaley and Rao, Code of Civil Procedure, 5th edn., page 2358 and cases cited there notice has to be given to the judgment-debtor. With respect this seems to be a correct interpretation of the rule and the proper order to make is in the nature of a rule *nisi* issuing to the judgment-debtor to show cause why the sum in the hands of the Court in the other suit should not be paid over to the decree-holder. The effect of the rule nisi will be to hold the property in the hands of the Court until the rule is discharged or made absolute, the Court making the order being the custody Court.
As the applicant has expressed the view that if notice is ordered he may have to consider withdrawal of his application on other grounds, he may now make further submission to the Court.