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. 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. 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.
Even though primarily the decree will be executed by the court which passed it,
it can also be executed by another court suo motuor on the application of
decree holder. For commencing execution proceedings the decree-holder, or
legal representative of the decree-holder(if the decree-holder is dead), or
representative of decree-holder, or any person claiming under the decree
holder, or the transferee of the decree-holder(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. 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. 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. 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. The decree as mentioned in this section is only a money decree and not
a mortgage decree. 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.
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. There are two conflicting opinions regarding whether the
judgment-debtor has an option to waive the benefit conferred by this
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.The judgment debtor shall attend the court on the date prescribed for
deciding the terms of proclamation of sale. 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.
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
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.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.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‘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. 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. 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. 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. 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.
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. One other copy can be affixed on any conspicuous part of the
judgment-debtors house. 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. 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.In Krishnamukhlalv.Bhawanit
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, 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. 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.
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. 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. Rules 46A to 46I deals
exclusively with the garnishee proceedings. “Garnishee” means a judgment-debtors
debtor. “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. “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. “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. Garnishee proceedings cannot be taken in respect of a debt
which cannot be attached under this code. Where the garnishee disputes his
liability, the court must raise an issue, and determine the liability of
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. 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.
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. Furthermore, the attachment of salary of government or
railway authority servants can be done by withholding it subject to section 60
of CPC. A partnership property cannot be attached in execution of a
decree. Such an attachment would be allowed only in a situation where the
decree is passed against the firm or the partners. 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. Where the decree is against the
partnership firm, the partnership property can be attached.
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. 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. 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.
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
(c) The decree is set aside or reversed.
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
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. On failure from the court to
give an express direction, it is considered implied that the attachment has
1.2.4Private alienation of property after attachment
Attachment creates no charge or lien upon the attached property. 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.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. 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. 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. 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. 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.
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.
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.
17,Halsbury’s Laws of England232 (4thed);Concise Oxford English
Takwani C.K.,Civil Procedure with Limitation Act,1963599(6thed. Eastern
Book Company) .
Mahijibhai Mohanbhai v. Patel Manibhai, AIR 1965 SC 1477 at pp.1484-85;Ramankutty
Guptan v. Avara, (1994) 2 SCC 642.
Civil Procedure Code 1908, §39(2).
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.
Civil Procedure Code 1908, O.21 R.10.
Civil Procedure Code 1908, §146;See also,Ram Murti Devi v. Ralla Ram,AIR
1987 HP 1.
Civil Procedure Code 1908, §49, O.21 R.16;See AlsoDhani Ram v. Lala Sri
Ram, (1980) 2 SCC 162.
Civil Procedure Code 1908, §51;See also,Supra1.
Encyclopædia Britannica(11th ed. Cambridge University Press).
Attachment of Property, Lawyers Club India (Mar. 26, 2018, 4:00PM), http://www.lawyersclubindia.com/articles/Attachment-of-Property-4279.asp
Civil Procedure Code 1908, §60.
1, Mulla,Code of Civil Procedure(17thed. Lexis Nexis, 2007).
Civil Procedure Code 1908, §60(1).
Rajindra Kumar v. Chetan Lal, AIR 1940 Lah 65;Union of India v. Jyoti Chit
Fund and Finance, (1976) 3 SCC 607
Civil Procedure Code 1908, O.21 R.54.
Attachment in execution proceedings, Wordpress- Articles on Law (Mar. 27,
Civil Procedure Code 1908. O.21 R.54(2).
Civil Procedure Code 1908, O.21 R.90.
AIR 1928 PC 139.
Civil Procedure Code 1908, O.21 R.43.
Civil Procedure Code 1908, O.21 R.43.
Civil Procedure Code 1908, O.21 R.43.
Civil Procedure Code 1908, O.21 R.44.
Civil Procedure Code 1908, O.21 R.45.
Civil Procedure Code 1908, O.21 R.45(2).
AIR 1974 Guj.L.
Civil Procedure Code 1908, O.21 R.41.
Civil Procedure Code 1908, O.21 R.41(1).
Civil Procedure Code 1908, O.21 R.42.
Civil Procedure Code 1908, O.21 R.46(1)(i).
Alsidas Kaverlal v Hiriya Gowder, AIR 1961 Mad 189.
Kazim Jawa Jung v. Mir Mohd Ali, AIR 1972 AP 70.
Civil Procedure Code 1908, O.21 R.46C;Mackinnon Mackenzie & Co (P) Ltd v.
Anil Kumar Sen; Mulla,Supra.
Civil Procedure Code 1908, O.21 R.46(1)(ii).
Civil Procedure Code 1908, O.21 R.46(1)(iii).
Civil Procedure Code 1908, O.21 R.47.
Civil Procedure Code 1908, O.21 R.48.
Civil Procedure Code 1908, O.21 R.49.
Civil Procedure Code 1908, O.21 R.49(2).
Civil Procedure Code 1908, O.21 R.50.
Civil Procedure Code 1908, O.21 R.51.
Civil Procedure Code 1908, O.21 R.52.
Civil Procedure Code 1908, O.21 R.56.
Civil Procedure Code 1908, O.21 R.55.
Civil Procedure Code 1908,O.21 R.57.
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).
Krishan v Travancore Bank Ltd,AIR 1956 TC 34.
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.
Civil Procedure Code 1908, §46.
Manganese Ore (India) Ltd v Mangilal Rungta,AIR 1981 Del 114.
Civil Procedure Code 1908, O.21 R.65.