Khan v Karim (Civil Suit No. 9 of 1954) [1955] EACA 1 (1 January 1955)

## 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.