Superior Court Rules

ORDER 45

ATTACHMENT OF DEBTS

I. Attachment of debts

1. (1) The court may, upon the ex parte application of any person who has obtained a judgment or order for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment or order (hereinafter called the judgment debtor), and upon affidavit by himself or his solicitor stating that judgment has been recovered, or the order made, and that it is still unsatisfied, and to what amount, and that any other person is indebted to such debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (hereinafter called the garnishee) to such debtor shall be attached to answer the judgment or order; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court or an officer of the court, as such court shall appoint, to show cause why he should not pay to the person who has obtained such judgment or order, the debt due from him to such debtor, or so much thereof as may be sufficient to satisfy the judgment or order.

(2) At least seven days before the date of hearing, the order nisi shall be served on the garnishee and, unless otherwise ordered, on the judgment debtor or his solicitor. Service on the judgment debtor may be made in manner provided by Order 121, or in such other manner as the court may direct.

(3) In this rule ‘any other person’ shall include a firm, any member of which is resident within the jurisdiction, and a garnishee order may be made against any firm in the name of the firm; and any appearance by any member then within the jurisdiction pursuant to any order made under this rule shall be a sufficient appearance by the firm.

2. Service of an order that debts due or accruing to a judgment debtor shall be attached, or of notice thereof, on the garnishee, in such manner as the court shall direct, shall bind such debts in his hands.

3. If the garnishee does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment or order, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear, then the court may order execution to issue, and it may issue accordingly, without any previous order or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.

4. If the garnishee disputes his liability, the court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined.

5. Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.

6. After hearing the allegations of any third person under such order as in rule 5 mentioned, and of any other person whom by the same or any subsequent order the court may order to appear, or in case of such third person not appearing when ordered, the court may order execution to issue to levy the amount due from such garnishee together with the costs of the garnishee proceedings, or any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person, or make such other order as such court shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the court shall think just and reasonable.

7. Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment debtor to the amount paid or levied, although such proceeding may be set aside, or the judgment or order reversed.

8. The costs of any application for an attachment of debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the court, and as regards the costs of the judgment creditor, shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order, and in priority to the amount of the judgment debt.

II. Receivers by way of equitable execution

9. In every case in which an application is made for the appointment of a receiver by way of equitable execution, the court in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if it shall so think fit, direct any inquiries on these or other matters, before making the appointment. The order shall be made upon such terms as the court may direct.

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