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Attachment of Property Under Execution Proceedings

Every civil suit is accompanied by three stages which starts from the initiation or institution of suit, adjudication of suit and finally the implementation of the litigation. The implementation of the litigation is the step in which the results of the adjudication are put into action, hence this stage is known as the execution. It is the process of enforcing or giving effect to the order or judgment passed by the court of justice[1]. It is the enforcement of the decree through the judicial process and allows the decree holder to benefit from the fruits of the decree passed by a competent court in his favor[2]. Section 38 of the code states as to who can execute the decree, which is the court which passed it or the court to which it is sent for execution. Section 37 of the code expands on the expression “court which passed a decree”.

The following courts come under the purview of section 37:
(I) The court of first instance which actually passed the decree;
(II) The court of first instance in case of appellate decrees;
(III) Where the court of first instance has ceased to exist, the court which would have jurisdiction to try the suit at the time of execution; and
(IV) Where the court of first instance has ceased to have jurisdiction to execute the decree, the court which at the time of execution would have had jurisdiction to try the suit[3].
Even though primarily the decree will be executed by the court which passed it, it can also be executed by another court suo motu[4]or on the application of decree holder[5]. For commencing execution proceedings the decree-holder[6], or legal representative of the decree-holder[7](if the decree-holder is dead), or representative of decree-holder[8], or any person claiming under the decree holder[9], or the transferee of the decree-holder[10](on satisfaction of certain conditions) should file an application to the court which passed the decree or to the court where it has been transferred to.

There are various modes of execution of a decree including delivery of any property specified in the decree, by attachment and sale or by sale without attachment of property, or by arrest and detention in civil prison of the judgment-debtor or by appointing a receiver, or by effecting partition, or in such other manner as the nature of the relief may require[11]. The author in this paper will be analyzing attachment of property as a mode of execution of decree, and interpreting the provisions and procedures in Civil Procedure Code 1908 regarding the same.

Attachment of Property

1.2.1Property that can be attached.
Attachmentis a legal process by which a court of law, at the request of a creditor, designates specific property owned by the debtor to be transferred to the creditor, or sold for the benefit of the creditor[12]. The property belonging to the judgment debtor or the property over which, or the profits of which, he has disposing power which he may exercise for his own benefit, is liable to attachment and sale in execution of a decree[13]. Sections 60-64 and rules 41-57 of order 21 of CPC 1908, deal with matter of attachment of property.

Section 60 brings under its purview property that can be attached and cannot be attached. All saleable property including lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, government securities, bonds or other securities for money, debts, shares in a corporation, and other than the assets expressly excluded which belongs to the judgment-debtor maybe attached and sold in execution of a decree against him[14]. The decree as mentioned in this section is only a money decree and not a mortgage decree[15]. It is essential that the property may not only belong to the judgment-debtor but he has disposing power over it which can be exercised for his benefit[16].

The proviso to §60(1) includes property which are exempt from attachment and sale. §61 also includes partial exemption of agricultural produce from attachment. It includes necessary wearing apparel, cooking vessels, bedding, tools of artisans, implements of husbandry, houses of agriculturalists, wages, salaries, pensions and gratuities, compulsory deposits, right to future maintenance, etc[17]. There are two conflicting opinions regarding whether the judgment-debtor has an option to waive the benefit conferred by this proviso[18].

1.2.2Modes/Procedure of Attachment
The mode of procedure for attachment of immovable property starts with issuing a prohibitory order to the judgment debtor and to the public generally, this order will stop the judgment-debtor from transferring the property or charging it[19].The judgment debtor shall attend the court on the date prescribed for deciding the terms of proclamation of sale[20]. Normally for immovable property two copies of prohibitory order is sufficient. But when the land is one where revenue is paid to the government, three copies of prohibitory order is prepared. In order to make the attachment valid, the details given in the schedule attached with the order should be matched to be strictly same with the details given in the schedules of the property given in warrant[21].

Furthermore, the warrant and the prohibitory orders along with the copies shall be submitted to the Nazir. The Nazir will endorse the warrant and return it within specified time before the Court. Where any person deputed by the Nazir completed the above work of attachment of property, a separate document stating the manner in which, the day and hour at which he did such act has to be attached [22].

Beating of drum or any customary practice will be carried out for the purpose of proclamation of the order, and the copy of it will be affixed on the conspicuous part of the property as well as on the court house[23].After this, the reader has to record a note stating the fact that all the required formalities dictated by law to be followed have been complied with. The presiding officer will take charge of ensuring its correctness. The court should make sure that all the requirements or formalities for a legal attachment have been complied with inorder to prevent any sort of material irregularity as it might cause serious trouble and loss to the parties.[24]The civil courts should also apply proper care and caution in the process of service of warrants of attachment before they take any action with respect to the property.


‘No property can be declared to be attached', was observed by the Privy Council in Muthiah Chettiar v Palaniappa Chettiar[25]‘unless first the order for attachment has been issued, and secondly inexecution of that order, the other things prescribed by the rules in the Code have been done’. Therefore, firstly there must be first anorder of attachment and secondly, in execution of that order formalities prescribed therein have to be complied with, that is, there should be a prohibitory order restraining the person from in anyway alienating the property sought to be attached[26]. The formalities required under this section are mandatory since the intention behind it is to prevent the judgment-debtor from transferring or alienating the property.

When the property to be attached is movable property which is not an agricultural produce, then the attaching officer can seize the property and keep it in his custody[27]. But if the property seized is of perishable nature or the cost of keeping it is likely to exceed its value the attaching officer can sell it immediately[28]. If the attachment officer fails to sell such property, he can at the instance of judgment-debtor or decree-holder or anyone interested in such property leave it in the custody of a respectable person in the village or place where it has been attached[29]. The custodian will later be liable for the inability to produce such property before the court, or for any loss or damage caused to it[30].

When the property to be attached is agricultural produce, a copy of the warrant of attachment can be affixed on the land on which such crop is grown, or where the produce has been cut or gathered, or on the threshing treading floor or fodder-stack[31]. One other copy can be affixed on any conspicuous part of the judgment-debtors house[32]. When growing crops are being attached the court requires it to be made in the application the time at which it is likely to be fit to be cut or gathered[33]. The judgment-debtor ought to take all necessary steps or actions for preserving or maturing it and if the judgment-debtor fails to do the same, the decree-holder can carry out these needful steps and recover the expenses from the judgment-debtor[34].In Krishnamukhlalv.Bhawan[35]it was held that even if the attachment of agricultural lands is irregular or invalid for want of non-publication in the office of the collector as required by O.21, R.54, C.P.C, it would not prevent the court from proceeding further with the sale of the properties, because, the law does not say that an immovable property cannot be sold in execution of a decree without first attaching it.

In case of amoney decreethe decree-holder can apply to the court to orally examine the judgment-debtor or officer or any other person, as to what means he has to satisfy the decree[36], and also direct him to make an affidavit stating the particulars of his assets, if the debts have been unpaid for a period exceeding 30 days[37]. In case of adecree for rent or mesne profitsor any other matter which is to be determined subsequently, the property of the judgment-debtor can be attached before even ascertaining the amount as done in the case of ordinary money decrees[38].

Rule 46 can be divided into 3 parts. Firstly, attachment of a debt not secured by negotiable instrument. The attachment can be made by a written order prohibiting the creditor from recovering the debt and debtor from making any payments against it until a court order on its behalf[39]. This provision mainly deals with garnishee proceedings, where the judgment-debtors money is in the hands of third persons.. The prohibitory order can be issued and the debt amount need not be ascertained at this period of time[40]. Rules 46A to 46I deals exclusively with the garnishee proceedings. “Garnishee” means a judgment-debtors debtor[41]. “Garnisher” would be the decree-holder who initiates the garnishee proceedings, and “garnishment” is the process through which decree holder seeks to get the property of the judgment-debtor[42]. “Garnishee proceeding” is a judicial proceeding where the decree-holder prays to the executing court to direct third party who is a debtor of the judgment-debtor to pay the amount to the garnisher[43]. “Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the judgment-debtor because the latter is indebted to the garnisher[44]. Garnishee proceedings cannot be taken in respect of a debt which cannot be attached under this code[45]. Where the garnishee disputes his liability, the court must raise an issue, and determine the liability of garnishee[46].

Secondly, in case ofattachment of share in the capital of a corporation the owner of the share will be prohibited from transferring the share or receiving any dividend according to an order of the court[47]. Finally in case ofattachment of movable property not in the possession of judgment-debtor, except a property deposited with the court, or in the custody of the court, the person in the possession of such property will be stopped from giving it to the judgment-debtor as per the order from the court[48].

Whenshare or interest in movables is the property to be attached, a notice will be forwarded to the judgment-debtor prohibiting him from transferring or charging the same[49]. Furthermore, the attachment of salary of government or railway authority servants can be done by withholding it subject to section 60 of CPC[50]. A partnership property cannot be attached in execution of a decree[51]. Such an attachment would be allowed only in a situation where the decree is passed against the firm or the partners[52]. If the decree-holder makes an application against the partner, the court can issue an order and appoint a receiver to ascertain the partners share in the profit or any amount he has to receive and further make a sale[53]. Where the decree is against the partnership firm, the partnership property can be attached[54].

Where the property to be attached is a negotiable interest which is not within the custody of public officer, or deposited in the court, the process of attachment can be carried out through actual seizure[55]. Where any property to be attached is within the custody of court or public officer, a notice will be served to them stating that such property should be held subject to further orders of the court[56]. In a case where the property attached is a current coin or currency notes, the court can direct such items to be handed over to the decree-holder in satisfaction of his claim[57].

1.2.3Removal & determination of attachment
The attachment shall be deemed to be withdrawn in the following cases :
(a) The decreed amount, all costs, charges, and expenses from the attachment of property are paid into the court, or
(b) Satisfaction of the decree is made through the court or certified to the court, or
(c) The decree is set aside or reversed[58].

In case of immovable property, the withdrawal of attachment can be proclaimed by the judgment-debtor and the copy of such a proclamation can be affixed in a conspicuous part of the property and a conspicuous part of the court house at his expense[59].

Determination is as to the status of the attachment. In cases where the property has been attached but later the court passes an order dismissing such an execution, the court will direct the status of the attachment, i.e, whether the attachment will continue or cease to exist[60]. On failure from the court to give an express direction, it is considered implied that the attachment has ceased[61].

1.2.4Private alienation of property after attachment
Attachment creates no charge or lien upon the attached property[62]. It only confers a right on the decree-holder to have the attached property kept incustodia legisfor being dealt with by the court in accordance with law.[63]It merely prevents and avoids private alienations; it does not confer any title on the attaching creditors.27Private alienation of property after attachment is void. If the judgment-debtor transfers or delivers such property after attachment, any such transfer is considered as void according to section 64 of CPC. The objective of this section is to prevent any sort of fraud on the decree-holders and secure their interest[64]. Such an attachment should be made in accordance with the procedure prescribed by the CPC 1908. A mere order for attachment is not sufficient, in the case of immovable property the attachment to render subsequent alienation invalid must be made in a manner prescribed by Order 21 Rule 54[65]. But the section also enshrines that this does not apply in cases where the agreement for alienation was made before the attachment.

1.2.5Attachment under precept
Precept is available to provide the decree-holder with an interim attachment. On an application by the decree-holder the court which issued the decree will issue a precept to another court[66]. As a general rule, territorial jurisdiction is a condition precedent to a court executing a decree and neither the court which passes the decree, nor the court to which it is sent for execution, can execute it in respect of property lying outside its territorial jurisdiction[67]. The object of section 46 is simply to enable the attachment of the property of the judgment-debtor situated within the jurisdiction of another court, in order to prevent the judgment-debtor from alienating or otherwise dealing with it to the detriment of the judgment-debtor till proper proceedings are taken.[68]

1.3 Conclusion
The Civil Procedure Code 1908, includes many procedures and modes for attachment of different kinds of property. Attachment is the first step and sale of the property will be carried out after attachment. In some cases sale can be done without attachment of the property as well,. This does not make the sale irregular. But the right procedure to be followed is attachment followed by the sale of the property. Section 65 to 73, and Order 21 Rules 64-94 deals with sale of movable and immovable property. The court will appoint an officer who will be in-charge of selling the property in execution of the decree[69].

In this paper the author has efficiently gone through the nuances of the procedural law dealing with attachment of property. The Order 21 of the code is an elaborate explanation of all the procedures dealing with attachment of property covering all its aspects, and different kinds of property. Therefore the process of execution is complete not when the order or decree is passed by the court, but only when the decree-holder actually gets the property or money that was awarded to him.

End-Notes
[1]17,Halsbury’s Laws of England232 (4thed);Concise Oxford English Dictionary497(2002).
[2]Takwani C.K.,Civil Procedure with Limitation Act,1963599(6thed. Eastern Book Company) .
[3]Mahijibhai Mohanbhai v. Patel Manibhai, AIR 1965 SC 1477 at pp.1484-85;Ramankutty Guptan v. Avara, (1994) 2 SCC 642.
[4]Civil Procedure Code 1908, §39(2).
[5]Civil Procedure Code 1908, §39(1);See also,Firm Hansraj Nathuram v. Firm Lalji Raja & Sons, AIR 1963 SC 1180;Narhari Shivram v. Pannalal Umediram, (1976) 3 SCC 203.
[6]Civil Procedure Code 1908, O.21 R.10.
[7]Civil Procedure Code 1908, §146;See also,Ram Murti Devi v. Ralla Ram,AIR 1987 HP 1.
[8]Id.
[9]Id.
[10]Civil Procedure Code 1908, §49, O.21 R.16;See AlsoDhani Ram v. Lala Sri Ram, (1980) 2 SCC 162.
[11]Civil Procedure Code 1908, §51;See also,Supra1.
[12]Encyclopædia Britannica(11th ed. Cambridge University Press).
[13]Attachment of Property, Lawyers Club India (Mar. 26, 2018, 4:00PM), http://www.lawyersclubindia.com/articles/Attachment-of-Property-4279.asp
[14]Civil Procedure Code 1908, §60.
[15]1, Mulla,Code of Civil Procedure(17thed. Lexis Nexis, 2007).
[16]Id.
[17]Civil Procedure Code 1908, §60(1).
[18]Rajindra Kumar v. Chetan Lal, AIR 1940 Lah 65;Union of India v. Jyoti Chit Fund and Finance, (1976) 3 SCC 607
[19]Civil Procedure Code 1908, O.21 R.54.
[20]Id.
[21]Attachment in execution proceedings, Wordpress- Articles on Law (Mar. 27, 2:30pm), https://articlesonlaw.wordpress.com/2017/06/06/attachments-in-execution-proceedings/
[22]Id
[23]Civil Procedure Code 1908. O.21 R.54(2).
[24]Civil Procedure Code 1908, O.21 R.90.
[25]AIR 1928 PC 139.
[26]Mulla,Supra.
[27]Civil Procedure Code 1908, O.21 R.43.
[28]Id.
[29]Civil Procedure Code 1908, O.21 R.43.
[30]Civil Procedure Code 1908, O.21 R.43.
[31]Civil Procedure Code 1908, O.21 R.44.
[32]Id
[33]Civil Procedure Code 1908, O.21 R.45.
[34]Civil Procedure Code 1908, O.21 R.45(2).
[35]AIR 1974 Guj.L.
[36]Civil Procedure Code 1908, O.21 R.41.
[37]Civil Procedure Code 1908, O.21 R.41(1).
[38]Civil Procedure Code 1908, O.21 R.42.
[39]Civil Procedure Code 1908, O.21 R.46(1)(i).
[40]Alsidas Kaverlal v Hiriya Gowder, AIR 1961 Mad 189.
[41]Takwani,Supra.
[42]Id.
[43]Id.
[44]Id.
[45]Kazim Jawa Jung v. Mir Mohd Ali, AIR 1972 AP 70.
[46]Civil Procedure Code 1908, O.21 R.46C;Mackinnon Mackenzie & Co (P) Ltd v. Anil Kumar Sen; Mulla,Supra.
[47]Civil Procedure Code 1908, O.21 R.46(1)(ii).
[48]Civil Procedure Code 1908, O.21 R.46(1)(iii).
[49]Civil Procedure Code 1908, O.21 R.47.
[50]Civil Procedure Code 1908, O.21 R.48.
[51]Civil Procedure Code 1908, O.21 R.49.
[52]Id.
[53]Civil Procedure Code 1908, O.21 R.49(2).
[54]Civil Procedure Code 1908, O.21 R.50.
[55]Civil Procedure Code 1908, O.21 R.51.
[56]Civil Procedure Code 1908, O.21 R.52.
[57]Civil Procedure Code 1908, O.21 R.56.
[58]Civil Procedure Code 1908, O.21 R.55.
[59]Id.
[60]Civil Procedure Code 1908,O.21 R.57.
[61]Id.
[62]Sarkies v Bundho Baeed,(1869) 1 NWPHC Rep 172; Soobul Chunder v Russick Lall,(1888) 15 Cal 202; Zemindar of Karvetnagar of Trustee of Tirumalai, (1909) 32 Mad 429; Frederick Peacock v Madan Gopal, (1902) 29 Cal 428; Narayan Ganesh v Fatma Duad,AIR 1952 Bom 70;Hansraj v Dhanwant Singh,AIR 1961 Punj 510; Govt of Travancore Cochin v Bank of Cochin Ltd,AIR 1954 TC 243 (FB).
[63]Krishan v Travancore Bank Ltd,AIR 1956 TC 34.
[64]Mulla,Supra.
[65]Pokhpal Singh v Kanhaiya Lal,AIR 1946 All 438; Nur Ahmad v Altaf Ali, (1878) 2 All 58; Ganga Din v Khushali,(1885) 7 All 709; Satya Charan v Madhub, (1905) 9 Cal WN 693; Ahmad Yar v Bose, AIR 1925 Lah 483; Bharat Chandra v Gauranga, AIR 1927 Cal 885.
[66]Civil Procedure Code 1908, §46.
[67]Mulla,Supra.
[68]Manganese Ore (India) Ltd v Mangilal Rungta,AIR 1981 Del 114.
[69]Civil Procedure Code 1908, O.21 R.65.

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