DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY LUCKNOW

2016-17

FINAL DRAFT
CODE OF CIVIL PROCEDURE LAW
PROVISIONS RELATED WITH ATTACHEMENT OF
PROPERTY

Under The Guidance of: Project By:

Dr. Radheshyam Prajapati Lokesh Chandra ranjan
Asst. Professor Roll no. 75
BA LLB (Hons) Sem-IV
 ACKNOWLEDGEMENT

I am heartily thankful to my subject teacher Radheshyam Prasad sir for his constant support
and valuable guidance in the completion of this project. Thank you sir for without you this
project would not have been possible.

I would like to thank my parents for having supported me in all possible ways for the
completion of this project.

I am also thankful to the Library of my university “DR. MADHU LIMAYE LIBRARY” for
the help and support which they provided to me to complete this project.

And last but not the least I wish to thank all my friends and colleagues who supported me and
gave their valuable points of view for the completion of this project.
 INDEX

INTRODUCTION…………………………………………………………………………………

NATURE AND SCOPE…………………………………………………………………………..

OBJECT…………………………………………………………………………………………..

WHICH PROPERTY CAN BE ATTACHED………………………………………………….

WHICH PROPERTY CAN NOT BE ATTACHED…………………………. ………………

MODES OF ATTACHMENT………………………………………........................................

TYPES OF DECREE AND THEIR EXECUTION………………………………………….

 SPECIFIC MOVABLE PROPERTY……………………………………………………..

 DOCUMENT NEGOTIABLE INSTRUMENT…………………………………………..
 IMMOVABLE PROPERTY………………………………………………………………
 ARREST AND DETENTION OF JUDGMENT DEBTOR……………………………..
 CASE LAWS……………………………………………………………………………..
 CONCLUSION………………………………………………………………………….
 BIBLIOGRAPHY………………………………………………………………………
INRODUCTION
The passing of a decree by a competent court conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit, thus creating substantive rights
in favour of the decree-holder. However, lately it has been seen that instead of following the
terms and conditions of the decree, judgment-debtors have been placing a number of obstacles in
the way of a decree-holder, who seeks to realize the fruits of the decree passed in his favour by a
competent court. In fact, such a trend has become so prevalent that it has forced the Supreme
Court to opine that ‘the difficulties of a litigant begin when he has obtained a decree’

Conscious of the significance and importance of giving effect to the decree and orders passed by
competent courts, the Code of Civil Procedure provides for elaborate rules for the execution of
decrees. In an attempt to ensure that a decree-holder is able to realize the fruits of the decree, the
Code of Civil Procedure gives a number of modes for the execution of decrees. One of these
modes of execution of decrees is the process of attachment and sale of the properties of the
judgment-debtor.

Since, a judgment-creditor does not by virtue of his judgment, get a right to the property of the
judgment-debtor, his remedy is not by way of a suit but by attachment and sale in execution.
While through the process of attachment the court informs the world that the property so ordered
to be attached is “in its view” and “no existing rights and liabilities should be altered”; through
the process of sale of the properties of the judgment-debtor, the Court diverts the money so
collected to the decree-holder in satisfaction of his claim.

However, by its very nature property may be of different types. Therefore, a judgment-debtor
may possess either movable or immovable properties, or both. Thus, keeping in regard the
differing characteristics of these two types of properties, the Code of Civil Procedure prescribes
different procedures for the attachment and sale of movable and immovable properties.

It is the endeavor of this project to examine the process of attachment and sale of movable and
immovable property in a money decree and to intellectualize the reasons for the different process
for the attachment and sale of movable and immovable property.

NATURE AND SCOPE

The code enumerates properties which are liable to be attached and sold in execution of a decree.
It also specifies properties which are not liable to be attached or sold. It also prescribes the
procedure where the same property is attached in execution of decrees by more than one court.1

OBJECT

1
Section 60
The primary object of attachment of property is to give notice to the judgment debtor not to
alienate the property to anyone as well also to the general public not to purchase or in any other
manner deal with the property of the judgment debtor attached in execution proceeding.

Section 60. Property liable to attachment and sale in execution of decree

The following properly is liable to attachment and sale in execution of a decree, namely, lands,
houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundi,
promissory notes, Government securities, bonds or other securities for money, debts, shares in a
corporation and, save as hereinafter mentioned, all other saleable property, movable or
immovable, 2belonging to the judgment-debtor, or over which, or the profits of which, he has a
disposing power which he may exercise for his own benefit, whether the same be held in the
name of the judgment-debtor or by another person in trust for him or on his behalf.

PROPERTY WHICH CAN NOT BE ATTACHED SECTION 60(1)

The proviso to sub-section (1) of section 60 declares that the properties specified therein are
exempt from attachment and sale in the execution of a decree.3
The necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his
wife and children, and such personal ornaments as, in accordance with religious usage, cannot be
parted with by any woman; tools of artisans, and, where the judgment-debtor is an
agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion
of the Court, be necessary to enable him to earn his livelihood as such, and such portion of
agricultural produce or of any class of agricultural produce as may have been' declared to be free
from liability under the provisions.

MODES OF ATTACHMENT OF PROPERTY

1. Rules 41 to 57 of Order 21 deal with the manner in which various properties are to be attached.
Rules 44 and 45 deal with the attachment of agricultural produce.

2. Rule 46 provides that where the movable property is

(i) a debt, the attachment would be by prohibiting the recovery of the debt or the debtor from
making payment thereof; or
(ii a share in a body corporate, the attachment would be by prohibiting the transfer of the
shares or from receiving any dividend.
(iii) any other movable property, the attachment would be by prohibiting the person in
possession of the property from giving possession to the judgment debtor.

2
http://kruschlaw.blogspot.in/2014/06/attachment-of-immovable-properties-in.html
3
State of Punjab v Dina Nath
 3 In case the judgment debtor has a co-share in a movable property, then the
attachment will be by a notice prohibiting him from transferring his share/interest or in any
manner creating a charge on the share in the property.

4. In case the property is a negotiable instrument the attachment shall be made by way of an
actual seizure and brought to the court

5. Rules 49 and 50 provide for attachment of property of a partnership firm.

6. Under Rule 54, if the property is immovable, then attachment will be made by a order
prohibiting any transfer or charge on the property. Any alienation after the
attachment will be null and void against all claims enforceable under the
attachment

The Civil Procedure Code makes elaborate provisions for attachment of property in execution.
The court is vested with power to order execution of decree by attachment or sale or sale without
attachment of the property situated within its local jurisdiction. Sale of property without
attachment is not void and attachment is not a condition precedent for sale. The general rule is
that ail-saleable property whether movable or immovable belonging to judgment debtor can be
attached. Section 60 of the CPC lays down the list of properties, which cannot be attached. Thus
wearing apparel, utensil, tool of artisans, houses of agriculturists, wages, salaries, pensions and
gratuities, right of maintenance etc. ca not be attached except and to the extent permitted under
section 60. The mode in which various properties may be attached are as given below:-

Type of Property Mode of Attachment

Movable Property (other than agricultural By actual seizure thereof. But if such property is
produce) in possession of the judgment debtor subject to speedy and natural decay, to the expense of
keeping it is likely to exceed its value, it may be sold.

Movable Property not in possession of the By an order prohibiting the person in possession
judgment debtor thereof from giving it to the judgment debtor.
Negotiable Instrument neither deposited in a By actual seizure and bringing it to Court.
court nor in the custody of a public officer
Debt not secured by a negotiable instrument By an order prohibiting the creditor from recovering
the debt and the debtor from paying the debt.
Share in the capital of a corporation By an order prohibiting the person in whose name the
share stands from transferring it or receiving dividend
thereon.
Share or interest in movable property belonging By a notice to the judgment debtor prohibiting him
to the judgment debtor and another as co-owner from transferring or charging it.

Salary or allowance of a public servant or a By an order that the amount shall (subject to the
private employee provisions of Section 60), be withheld from such
salary or allowance either in one payment or by
monthly installments.
Partnership Property By making an order –

(a) charging the interest of the partner in the

partnership property

(b) appointing a receiver of the share of the partner

in the profits

(c) directing accounts and inquiries

(d) ordering sale of such interest.4

Property in custody of court or public officer
Agricultural produce
By notice to such court or officer, requesting that such
property, and any interest or dividend thereon, may be
held subject to the order of the court.
By (i) affixing a copy of the warrant (a) in case of
growing crop, on land on which such crop has grown;
and

(ii) also by affixing a copy on the house in which the

judgment-debtor ordinarily resides, carries on business
or personally works for gain, or last resided, carried on
business or personally worked for gain.
Immovable Property By an order prohibiting the judgment-debtor from
transferring or charging it in any manner and all
persons from taking any benefit from such transaction
or charge.

VARIOUS TYPES OF DECREES AND THEIR MODE OF

EXECUTION

A. GENERAL

4
http://www.lawyersclubindia.com/articles/Attachment-of-Property-4279.asp
Elaborate procedures have been laid down for execution of various types of decrees. By virtue of
the very nature of such decrees special intricacies may be involved and specific remedies maybe
provided under the law to meet with such situation. Money decree involves payment of money
and the prescribed mode for execution includes notice to the judgment debtor, attachment of his
movable and immovable properties and sale thereof. The executing court also has a power to
order arrest and imprisonment of judgment debtor in exercise of its jurisdiction within the
framework prescribed under the law.

Provisions for garnishee also constitutes an important aspect of law of execution. Garnishee is a
person who owes money to the judgment debtor or is under obligation to deliver any movable
property to him. Through the mechanism of the garnishee order the judgment debtor is prevented
from realising his debt without discharging his obligation under the decree. Another important
mechanism to execute the decree is precept. Precept is an order or direction by the court which
passed the decree to other court which would be competent to execute the decree to attach any
property belonging to judgment debtor.

The main object underlying the provision of precept is to ensure interim attachment of the
property. It is the first step initiated by the court to fecilitate execution. The attachment effected
in furtherance of a precept is valid for 2 months and decree will have to be transferred for
executionThe procedure for garnishee order requires a notice to garnishee under rule 46 A of
order 21. If such notice is not given the whole process becomes futile.
Any amount lying to the credit of the judgment debtor can be attached by following garnishee
procedure. Shares, security and other movables belonging to judgment debtor can also be
attached and sold in execution of decree by following this procedure. The judgment debtor may
also make the part payment of the amount for making payment for the remaining amount.

B. SPECIFIC MOVABLE PROPERTY

When the decree is for any specific movable property, the execution can
take place in any of the following made
(a) By seizure and delivery of the property.
(b) By detention of the judgment debtor.
(c) By attachment of his properly.
(d) By attachment and detention both.
Money is not covered within the definition of movable property and there is separate procedure
for money decree. Provisions as stated above apply only to specific movable property in
possession of the judgment debtor and if it is in possession of third party the procedure
prescribed under this provision does not apply. If the court is satisfied that the property to be
delivered does not exist in specie for some other reason then in such case the court may also
direct the decree holder to disclose the market value of the property, as an alternate to the
delivery of the property. In respect of certain movables of importance it is not possible to work
out the money value. Even if a decree is silent the executing court can fix the amount if the
attempt to recover the property is fruitless. If the property to be delivered is not in the same
condition in which decree holder is entitled to get it, then the court can determine compensation
to be paid.

C. DOCUMENT AND NEGOTIABLE INSTRUMENTS

If the decree is for execution of a document, the process of execution involves signing of such
documents by the judgment debtor. When judgment debtor neglects or refuses to obey or comply
with the decree, the court shall after giving opportunity to the decree holder as well as to the
judgment debtor, prepare the draft of the document in accordance with the terms of the decree
and execute such document. Such document shall have same effect as the execution of the
document by the party himself. If the decree is for endorsement of a negotiable instrument and
the judgment debtor neglects or refuses to obey the decree, the court after giving an opportunity
shall prepare draft of endorsement and endorse it accordingly. It shall have same effect as
endorsement by party or his order to endorse it.

D. IMMOVABLE PROPERTY

A court executing a decree has the power to attach the property and sell the
property or portion thereof which is sufficient to satisfy the decree. After such attachment the
first step is issuing proclamation of sale. Such a proclamation shall be prepared after notice to
both the sides and shall comprise of following details:-

1. Time and place of sale.

2. Details of property or part thereof to be sold.
3. Revenue if any attached to property.
4. Encumbrance to which the property is liable.
5. Amount to be recovered under the decree.
6. Such other particulars which court considers material.
Service of notice is a mandatory requirement and non-compliance will vitiate
the entire proceedings.
The proclamation shall be affixed on the conspicuous part of the property. It should also be
published in the manner directed by court. The purpose of having stage of proclamation is to
protect the interest of intending purchasers by giving to them all material information and also to
protect interest of judgment debtor by facilitating him to fetch proper market price. The sale of
immovable property cannot take place without consent of judgment debtor before expiry of 15
days on the date of proclamation.

The court has discretion to adjourn the sale further but if the sale is adjourned for more than 30
days a fresh proclamation is required to be issued. The judgment debtor has a right to prevent the
property from being sold by paying the amount till such time the property is knocked down.
Decree holder cannot bid without express permission of the court. It is not obligatory on part of
the court to put the entire property of judgment debtor to sell. If part of the property is
sufficient, only that much should be sold.
It is quiet likely that a third party may raise objection to the attachment of property. In such case
court has to proceed for adjudication of the claim. If the property is already sold then no such
claim can be entertained. The court may also not entertain such claim if it finds that the claim or
objection was designed to unnecessarily delay the proceedings.

ARREST AND DETENTION OF JUDGEMENT DEBTOR

In the execution application the decree holder can insist that the decree be executed by arrest
and detention of the judgment debtor. If such a prayer is made in execution application, the
court will instead of issuing a warrant, issue a notice calling upon the judgment debtor to
appear before the court on a day to be specified in the notice and show cause why he should
not be committed to civil prison. Such a notice will not be necessary if the court is satisfied by
affidavit or otherwise that such notice will result in delay in the execution proceeding or the
judgment debtor is likely to abscond or leave local limits of the court. If the notice is not
complied warrant for arrest will be issued. Such warrant may direct that unless the specified
amount is paid the person should be brought before the court. The order for arrest and
detention should not be passed in mechanical manner. Mere failure to pay does not justify
arrest and detention of judgment debtor. In words of justice Krishna Iyer. The provision needs
to establish not mere omission to pay but an attitude of refusal on demand and dishonest
disowning of the obligation under the decree. Here the consideration of debtor’s other pressing
needs and strained circumstances will play prominently.
JOLLY GEORGE V/s. BANK OF COCHIN, AIR 1980, SC 470.

Justice Krishna Iyer has expressed great sympathy for the judgment debtor in distress and has
remarked that in this land of Daridranarayan it is no crime and to recover debts by procedure by
putting one in prison is violative of Article 21 unless there is proof of minimum fairness of
willful failure to pay inspite of sufficient means. The decision if applied in its true spirit virtually
makes the provision for arrest a dead letter. The application for arrest will generally be objected
on such grounds and execution of decree will get delayed further. Another important provision
connected with arrest is for payment of subsistence allowance. No judgment debtor shall be
arrested in execution of decree unless and until the decree holder pays into court such sum as the
Judge thinks sufficient for subsistence of judgment debtor from time of his arrest until he is
brought before the court. When such person is committed to Civil prison the court will fix his
monthly subsistence allowance and such amount will have to be paid by the decree holder in
advance. The amount can be recovered as cost of execution. If the judgment debtor appears
before the court then the application for arrest for imprisonment will be heard and appropriate
orders will be passed . Whenever the court is convinced that the object of the judgment debtor is
to defeat or delay the execution of the decree with malafide intention then such powers to send
judgment debtor to civil prison should be exercised. Similarly if the judgment debtor undertook
to deposit the decreetal amount with interest and cost, the default will justify the arrest and
imprisonment. A woman cannot be arrested and detained in civil prison in execution of
Decree for payment of money. Even in decree for restitution of conjugal rights a woman cannot
be arrested.

ESHTABLISHED CASES

1. State of Punjab v. Dina Nath,5.

The respondent a liquor vending licensee defaulted to pay license fee inspite of repeated
reminders. Recovery proceedings under the Punjab Land Revenue Act, 1857 were initiated
against him. The Collector issued a proclamation prohibiting the transfer or creation of a charge
by the respondent on his half share in an immovable property, consisting of a plot of land and a
building thereon, and notified the property for auction.

The respondent, filed a suit for permanent injuction restraining the appellant-State and the
collector from auctioning his half share, on the ground that the building was being used by him
tor his residence, and he had no other residential house, and that therefore the half share of the
residential house was exempt from attachment under clause (ccc) of the proviso to sub-section
(1) of section 60 of the Code of Civil Procedure, 1908. The trial court dismissed the suit and this
order was confirmed in appeal by the District judge

HELD: not applicable to the attachment and sale in revenue in recovery proceeding under Punjab
land revenue act.

2 . Subbarao v. Official Receiver 6

This appeal and one of the revision petitions arise out of an order passed in appeal by the
Subordinate Judge of Tenali on 31st March 1933. The remaining revision petition arises our of
the original order of the District Munsif of Tenali dated 30th July 1932 from whicn there was an
appeal to the Subordinate Judge. The points to be decided in the appeal and in the revision
petitions are one and the same. The facts necessary for understanding the question at issue can be
stated briefly. One Subba Rao, who is the appellant in the appeal instituted a suit against one B.
Guravayya and. his sons and got the family property of the defendants attached before judgment.
Two of the sons were minors, and apparently owing to the difficulty of getting these minors
properly represented in the suit the plaintiff therein gave up his claim against them, and a decree
was passed only as against the father and three of the sons. The father became insolvent and a
petition was filed for his adjudication as insolyent and the Official Receiver, Guntur, was
appointed interim Receiver Meanwhile the properties which had been attached before judgment
were brought to sale by the decree-holder Subba Rao, and a few days before the date of sale, the

5
AIR(1984) 1 SCC 137
6
AIR 1965 A.P. 52.
Official Receiver applied under Section 52, Provincal Insolvency Act for staying the sale and for
delivery of the property sought to be sold to the Official Receiver himself.

Section 64 of the Code of Civil Procedure makes it manifest that attachment has merely the
effect of preventing private alienation to the prejudice of claims under attachment. It conveys no
title, charge, lien or priority in favour of the attaching creditor. In fact, in Subbarao v. Official
Receiver the Andhra Pradesh High Court while dealing with the involuntary sale of the
judgment-debtor’s flat under a decree of a court, stated that an order of attachment does not
prevent a transfer by operation of law and nor does it create any interest or lien.

Rangoon Municipality v. Ram Behari,7

Rule No. 44[21] of Order 21 of the Code of Civil Procedure deals with the mode of
attachment of agricultural produce. While Section 2 (13) of the Code of Civil Procedure
provides that movable property includes growing crops, the term “agricultural produce” as used
in the Code of Civil Procedure is confined to growing crop standing on the land on which it has
grown or cut crop lying on the threshing floor or fodder stack. Elaborating on this point,
in Rangoon Municipality v. Ram Behari, wherein an objection was raised against the attachment
of the grains belonging to the judgment-debtor, the Court held that once the grain is separated
from the chaff it ceases to be agricultural produce and there is no protection against its
attachment and the grain as well as the straw both can be attached.

Unlike other movable property agricultural produce of either description cannot be attached
by actual seizure as provided in Order 21, Rule 43 of the Code of Civil Procedure. The custodia
legis in the case of agricultural produce on attachment is only symbolic and is not validly created
unless the rules of affixture herein provided are strictly complied with. The reason is that no
property can be declared to be attached unless, first, the order for attachment has been issued,
and secondly, in execution of that order the other things prescribed by the rules in the Code have
been done.

Ghanshyam Das v. Anant Kumar,8

In Ghanshyam Das v. Anant Kumar while dealing with the provisions of the Code of Civil
Procedure relating to the execution of decrees and orders, the Supreme Court had stated that the
Civil Procedure Code contains elaborate and exhaustive provisions for dealing with the question
of execution of decrees. More specifically, Section 51 of the Code of Civil Procedure
enumerates in general terms the various modes of execution of a decree, one amongst which is
the attachment of the property of the judgment-debtor.

7
AIR 1939 Rang 432
8
AIR 1991 SC 2251
Teeka and others v. State of U.P.,9.

Under Order 21, Rule 43, the attachment is legally effected only by actual seizure.
Significantly, in Teeka and others v. State of U.P. wherein the judgment-debtors had forcibly
entered the house of the decree-holder with intent to remove the attached cattle, the Supreme
Court while elaborating on the phrase “actual seizure” stated that unlike a prohibitory order
under Rule 46, attachment by actual seizure involves a change of possession from the judgment-
debtor to the court and that in case the property is kept in the custody of the decree-holder, the
decree-holder’s custody is not in his capacity as a decree holder but only as a bailee of
the sapurdar.

Significantly, keeping in view the varied nature of the movable properties that may be attached
under this rule the Proviso to Order 21, Rule 43 of the Code of Civil Procedure provides that
when the property seized is subject to speedy and natural decay, or when the expense of keeping
it in custody is likely to exceed its value, the attaching officer may sell it at once.

CONCLUSION

From the above discussion it clearly appears that execution is the enforcement of decrees and
orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree.
The execution is complete when the judgment-creditor or decree-holder gets money or other
thing awarded to him by the judgment, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of different type of situation and provide effective remedies not only to the
decree-holder and judgment-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest and
detention of the judgment-debtor, attachment of the property, by sale, by appointment of
receiver, partition, cross-decrees and cross-claims, payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable of giving relief
to an aggrieved party, he can file suit in civil court.

9
AIR 1961 SC 803
BIBLIOGRAPHY
 Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition.Eatern
Book Company
 D.V. Chitaley et. al., The Code of Civil Procedure (Volume III, 8th Ed., Nagpur: All
India Reporters Limited, 1971).
 D.F. Mulla, The Code of Civil Procedure (P.M. Bakshi Ed., 12th Ed., Bombay:
N.M. Tripathi Private Limited, 1990).
 S.C. Sarkar et al., The Law of Civil Procedure (7th Edition, Vol. I, Calcutta: S.C.
Sarkar and Sons Private Limited, 1986).
 S.N. Singh, The Code of Civil Procedure Including Pleadings (14th Edition,
Allahabad: Central Law Agency, 1990).