TOPIC - III ATTACHMENTS

S.No Name of the Officer & Designation Page

Number
1. Sri A.Pardha Saradhi, IV Addl. District Judge, Vijayawada 1-6

2. Sri N.Ramesh Babu, VIII Addl. District Judge, Vijayawada. 7-18

3. Sri G.Vallabhanaidu, XI Addl. District Judge, Vijayawada 19-32

4. Smt. S.Sarada Devi, XIII Addl. District Judge, Vijayawada 33-42

5. Smt.N.Saraswathi, Addl. Senior Civil Judge, Machilipatnam. 43-52

6. Sri G.Bhupal Reddy, Chief Metropolitan Magistrate, Vijayawada 53-58

7. Smt. M.Meena Devi, Prl. Senior Civil Judge, Vijayawada. 59-63

8. Sri Shaik Ibrahim Sharief, I Addl. Junior Civil Judge,Machilipatnam. 64-70

9. Sri P.Tirumala Rao, III Addl. Junior Civil Judge, Vijayawada. 71-85

10. Sri G.Amarangeswara Rao, Addl. Judicial 1st Class Magistrate, Avanigadda 86-99

11. Smt. M.Satya Kumari, Junior Civil Judge, Kaikaluru 100-106

12. Sri M.Jacob, Addl. Junior Civil Judge, Jaggaiahpet 107-114

13. Sri A.Rama Chandra Rao, II Metropolitan Magistrate, Vijayawada. 115-122

14. Sri P.Raju, Principal Junior Civil Judge, Tiruvuru 123-136

 1

Presented by : Sri A.Pardha Saradhi,

IV Addl. District Judge, Vijayawada.

In Execution Proceedings a party who files the suit will be anxious as to how his suit will be determined. A
party who obtain a decree is certain about the relief he got. But however, he will be uncertain as to when he could
realize the fruits of the decree obtained by him. He has to sweat for enforcement.
The relevant provisions with regard to the Execution are Sections 36 to 75; Sections 144, 146, 148 Civil Procedure
Code. Order -21 of Civil
Procedure Code which contains 106 Rules. Rules 205 to 285 in Chapter-16 of Civil Rules of Practice also deals with
Execution. Articles 125 to 129 and 134 to 137 deal with Limitation Aspects with regard to Execution proceedings. The
provisions under Court Fee Act Process Fee Rules, A.P.Advocate Fee Rules are also relevant to some extent.
Attachment of property etc.,

Attachment is provided in the Civil Procedure Code at Two Stages:

(i) One is stage before passing of Judgment which is provided under Order-38 of CPC from Rules 5 to 13;

(ii) Second is after passing of decree by way of attachment of movables, attachment of Salary Attachment of a
decree attachment of Negotiable Instruments, attachment of Immovables. The contours of attachment and sale in
Execution of decrees is provided under Section -60 of CPC.
The Execution Proceedings are applicable not only for execution of decrees but also for execution of orders
which can be executed (Sec.36). A decree may be executed in either by the Court which passed the decree or the court to
which the decree is sent for execution (Sec.38).
Section -39(d) says: that if the Judgment Debtor has no property within the local limits of the jurisdiction of
the Court which passed the decree, the decree may be transferred to such Court within the local limits of whose
jurisdiction the Judgment Debtor has property.
Section -39(4) says: that nothing in Sec.39 shall be deemed to authorize the court which passed a decree to
execute such a decree against any person or property outside the local limits of its jurisdiction. A decree may also be
transferred to the court in another State.
An attachment can be made before passing of Judgment and after passing of decree.
PRECEPT

Under Section 46 : a decree holder may apply to the court which passed a decree for issuing a precept to any
other court which would be competent to execute such decree to attach any property belonging to the Judgment
Debtor and specify in the precept. That court to which precept is sent shall proceed to
 2

attach the property in the manner prescribed in regard to attachment of property in execution of a decree. However,
attachment under precept shall not continue for more than two months, unless the period of attachment is extended
by an order of the Court which passed the decree or unless before determination of such attachment, the decree has
been transferred to the Court by which attachment has been made and the decree holder has applied for an order
for sale of such property. The issue of a precept U/s.46 of CPC will not have the effect of transfer of decree for
execution to the court to which precept is issued. A percept U/s.46 of CPC becomes necessary when the Judgment
Debtor’s property is situated within the limits of another Court and when it is necessary to prevent the Judgment debtor
from alienating or otherwise dealing with the property to the detriment of decreeholder till proper proceedings for the sale
of the property in pursuance of an application can be taken.
The same is held in Champalal Heerachand and another vs.Mohanlal Narayandass and others,
Whenever an application for precept is filed, it shall not be numbered as an E.P. It has to be numbered as
an E.A. For this, Shaik Fazal ELLAHI vs. Sri Krishna Makkal , 2 can be referred.
A precept may be issued under Sec.46 by a court which passed the decree to a court to which the Decree
holder seeks issuance of precept. After receiving the precept, the court which received the precept shall proceed to
attach the property. In the manner prescribed in regard to the attachment of property in execution of decree. An
attachment under a precept shall not continue beyond two months unless the court which passed the decree extends it.
The attachment would get extended if the Decree holder fails an E.P. before the court to which precept is issued when
he has filed the Execution Petition for sale of the property within two months of issuance of precept.
Section 51 (b) says: that the court may order execution of the decree by attachment and sale or by the sale
without attachment of any property.
Section 52 says; where a decree is passed against a legal representative of a deceased person, and if a decree
is for payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such
property of the deceased which has come to the hands of a legal representative.
Section 60 CPC lays down which properties are liable for attachment. The Land, Houses or other building,
goods money, bank notes, cheques, bills of exchange, hundies, promissory notes, Government securities, bonds or other
securities for money, debts, shares in a Corporation and all other saleable property such as movables or immovable
properties belonging to the Judgment
 3

Debtor or the property over which he has disposing power or said profits are liable to be attached.
Proviso, and the Explanations would state what properties are exempted from Attachment of Sale and the
limits for such attachments.
Section 60 also says which property is not liable for attachment and the extent of attachment and the
manner of such attachment etc. The particulars laid down in clauses (a) to (k) ka kb kc (l) to (p) are not liable to be
attached. These aspects are self explanatory. Explanations I to VI also can also be look into.
When the property is attached in execution of decrees in several courts, the court which shall receive or
realize such property and shall determine any claim to such property and any objection to the attachment shall be a Court of
highest grade. When there is no such difference in grade between such courts, the Court under whose decree a
property was first attached shall be competent to receive and realize the property. The said Court may also receive
any claim or objections to the property attached.
We have to see what is the effect of attachment. According Section 64 where attachment has been made
any private transfer or delivery of the property attached or transfer of interest in such property is prohibited. When
shares or Negotiable Instruments are attached any payment made to the J.Dr. of any debt or payment of dividends or
other monies contrary to attachment is void as against all claims of enforcement under the attachment. If there is a contract
entered into and registered before attachment, this will not come in the way of making private transfer of property
or delivering the property which is attached or transfer of interest of the property.
ATTACHMENT BEFORE JUDGMENT.

Rule-7 of Order -38 says that attachment shall be made in the manner provided for the attachment of the
property in execution of a decree.
By virtue of Rule-11 of Order 38 if the property is attached before Judgment and subsequently a decree is
passed in favour of the plaintiff, it Is not necessary for the D.Hr. when he files an Execution Petition to apply for
reattachment of the property.
Rule-7 says that the attachment shall be made in the manner provided for the attachment of property in
execution of a decree.
Rule-11 (A) (i) says the provisions provided for attachment in execution proceedings are also applicable for
attachment made before Judgment which continues after Judgment. Sub Rule (2) of Rule-11(A) of Order 38 says that an
attachment made before Judgment in a suit which is dismissed for default shall not be revived mere by reason
of the fact that the order of dismissal for suit for default has been set-aside and the suit has been restored. It is
necessary to consider whether the attachment made before attachment is
 4

surviving or continuing or whether the same has lapsed when the suit was dismissed before the decree was later
passed.
Madras Amendment has inserted Rule-11 B under Order 38 of CPC which provides that any order of
attachment passed before attachment and any order raising the attachment passed shall be communicated to the
Registering officer within the local limits of whose jurisdiction, the whole or any part of immovable property is
situated. Recently such amendment is also passed in AP through Gazette notification in the year 2015.
As attachment before Judgment and attachment in execution proceedings are connected and form contigus, it
is necessary to consider the attachment provided under Order. 38.
There are grey areas in Order 38 Rules- 5 to 8 of CPC. Rule-5 of CPC says that attachment before Judgment
can be ordered when the defendant is intending to obstruct or delay the execution of any decree by disposing of whole or
any part of the property from the local limits of the jurisdiction of the court. The court may direct the defendant
within time to be fixed by it either to furnish security in such sum as may be specified in the Order or to produce
and place at the disposal of the court, the said property or value of the same. For ensuring it he shows that the
same is sufficient for specifying the decree.
Sub Rule-(3) of Rule-5 says that the court may also direct conditional attachment of the whole or any portion of
the property specified under Sub Rule (2).
Sub Rule (4) says that the attachment shall be void. if the attachment is made without complying the provisions
of Sub Rule (1) of Rue-5 .
Requirements under Rule-5 of CPC are:

There must be credible evidence for material about the defendants intending to defeat or delay a prospective
decree. There shall not be vague allegations. The defendant may be required to furnish security or alternatively to
produce the property or value of the same or to show cause as to why he will not furnish security.
We do find some Judges making order which may say that the respondent-defendant is ordered to furnish
security within 48 hours or 72 hours etc. and on the failure to attach the specified property.
QUESTIONS THAT MAY ARISE IN THIS CONNECTION ARE:

I) to whom the Respondent/defendant has to furnish security whether to the Field Asst. or to the court?

ii) Whether the Field Asst. is competent to accept furnishing of security?

iii) Whether the factor considering sufficiency of security is being delegated to the Field Asst.?

iv) Whether two processes are being paid for making the Field Asst. to make two visits i.e. at the time of
serving notice calling upon to furnish security
 5

and for making second visit and effecting attachment. After mentioned time of 48 hours or 72 hours etc. in
the order?

v) Whether the court is delegating the power to the Field Asst. to consider about sufficiency of security or not?

vi) What security the respondent has to furnish?

vii) Would it not be sufficient for the respondent to show that he is having not only the property specified as
per Sub Rule (2) of Rule-5 but he is also having businesses and immovable properties etc. in his name?

viii) Whether the Field Asst. can exercise his mind at that stage and submitting a report to the court about the
respondent having businesses and property in his name.

ix) Whether can anyone provide security within 48 hours or 72 hours as the case may? Left to myself if called upon
to furnish such a security within short time when it is not specified what security I have to furnish? I can only say
that I am doing so and so job and I get a salary.
Rule-6 says that when the defendant fails to show cause as to why he shall not furnish security or he fails to furnish
security required within the time fixed by the court, the court may order that the property specified or part of the
property thereof be attached.
Rr. 5 and 6 have to be read together. Often we are not mentioning what is the required security.
Further I.A. is not being posted after 48 hours or 72 hours by excluding the date for service of notice by the Field Asst.
to enable the respondent to furnish security. Moreover, such order is not mentioning to whom the respondent has to
furnish. Such order is not mentioning that the Field Asst. is delegated the power to accept the security furnished. In fact,
the Code does not say that the court can delegate the power to accept furnishing of security by the Field Asst. These are
grey areas in Order. 38 Rs. 5 to 8. When Rr. 5 & 6 are read together , the order of attachment has to be made or can be
withdrawn under Rule-6 but not under Rule-5 of CPC.
There is no bar for the court to make conditional attachment for ensuring that the property specified is
not alienated pending furnishing of security by the respondent. I adopted the procedure of passing a tentative and
conditional order of attachment for ensuring that property is not alienated pending furnishing of security and to enable
the respondent/defendant to furnish security to the court so that the court may consider about sufficiency or
insufficient of security and whether there are grounds to show that the respondent need not furnish security in the
circumstances of the economic standing of the respondent. Rule-8 CPC says that a claim preferred for the property
attached before Judgment shall be adjudicated upon in the manner
 6

provided for adjudication of claims to property. Such claims have to be adjudicated under Rule-58 of Order 21 of CPC.
Section 94 (b) says in order to prevent the ends of justice from being defeated the court may if it is so
prescribed, direct the defendant to furnish the security or order attachment of any property.
Section 95 says that where in any suit in which attachment has been affected and it appears to the court that
such attachment was applied for on insufficient grounds, on the application made by the defendant, the court may
order reasonable compensation not exceeding Rs.50,000/- to the defendant.
What can be Attached :-

In Execution Proceedings provided for attachment of the property of the Judgment debtor under a
different Rules. It also provides for the manner of the attachment of movables and agricultural property and custody
of the movables and agricultural property.
The following items can be attached:

1) Movables (Rr. 43 and 43-A)

2) Agricultural produce (Rr.44 and 45)

3) Debt, Shares and movable property not in the possession of the Judgment debtor (R.46).

4) Attachment of share in the movables (R.47)

5) Attachment of Salary of Govt. Employees, Railway Company or Local Authority (R.48).

6) Attachment of salary or allowances of private employees (R.48.A)

7) Attachment of partnership property - (R.41)

8) Attachment of Negotiable Instruments (R.51)

9) Attachment of property in the custody of Court or Public Officer (R.52)

10) Attachment of Decree (R.53)

11) Attachment of Immovable property (R.54).

 7

Presented by : Sri N.Ramesh Babu,

VIII Addl. District Judge, Vijayawada.

Attachment means an extra part or extension that is or may be attached to something to perform a
particular function. Attachment means something such as a tie, band or fastener that attaches one thing to another.
An attachment is lawful seizure of property and placing of it under control of a court. Attachment is one of the modes of
execution of decrees by the decree holders against the properties of the Judgment debtors for recovery of amounts due by
the Judgment debtors to the Decree holders. Sec.60 of the Code of Civil Procedure deals with the property which can be
attached and the property which cannot be attached. In this paper presentation I refer some of the provisions of
Law relating to attachments in execution proceedings which are as follows:

I. ATTACHMENT OF MOVABLE PROPERTY OTHER THAN

AGRICULTURAL PRODUCE IN POSSESSION OF JDR
(Or.21 R 43 CPC):

(1) Where the property to be attached is movable property, other than agricultural produce, in the possession of
the JDr, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own
custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof. Provided
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; and, (A.P.State amendment): Provided also that,
when the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently
be removed and the attaching officer does not act under the first proviso to this rule,. He may at the instance of the JDr
or of the DHr or of any person claiming to be interested in such property leave it in the village or place where it has
been attached- (a) in the charge of the person at whose instance the property is retained in such village or place, if such
person enters into a bond in Form No 15 A of Appendix E to this schedule with one or more sufficient sureties for its
production when called for, or

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration
of the officer for a period of 15 days at such rate as may from time to time be fixed by the High Court be paid in advance.

(2) Whenever an attachment made under the provisions of this rule ceases for any of the reasons specified in rule
55 or 57 or rule 60 of this Order, the court may order the restitution of the attached property to the person
in whose
 8

possession it was before attachment.

Procedure under Civil Rules of Practice relating to attachment of movable property:

Rule 252 – Attachment of moveable property: When moveable property is attached in execution of any civil process,
the attaching officer shall give a copy of the list of attached property with description sufficient for identification to
the person from whose possession the property is attached, or if he is not present, then, to any adult male member of
the family of such person, who is present; or if none is present – shall affix it on the outer door of the house of such
person and shall note on the list6 dispatched or brought to the court which issued the process, the mode in which the
copy of the list has been delivered or affixed.

Rule 253 – If attached property is cash, jewels etc.: (1) If the property attached consists of Government or other
securities, jewels or other valuable articles of small bulk, the Nazir shall keep the same together with a descriptive list
in a box (not the ordinary cash chest of the court) under lock and seal and send the box for safe custody to the
nearest Government Treasury under the orders of Judge.
(2) In other cases, attached property brought to the court shall be retained by the Nazir in the Court house if it
can conveniently be stored or kept there.
Rule 254 – If Fire Arms are attached: When the property attached is a fire- arm or explosive substance, it may be
sent at once the officer-in-charge of the nearest Police Station who shall hold in subject to the further order of the
Court.

Rule 255 – Payment of Charges for maintenance for attached livestock: (1) The District Judge shall fix from time to
time, alter the rates to be charged for the maintenance of every description of livestock attached by several courts in
the district with reference to reasons and local conditions.

(2) Every person applying to the court to attach moveable property shall, in addition to the process fee, deposit such
reasonable sum as the court may direct for the cost of its removal to the Court house and of its custody and if such
property is livestock, for its maintenance in accordance with the prescribed rates. If such deposit when ordered be not
made, the attachment shall not issue.

(3) The Court at any time during the pendency of an attachment direct the decree-holder to pay into court within a
specified time, such additional sum as may be necessary to cover the costs for attachment, transport maintenance and
custody of property and if such payment is not made within the time prescribed may withdraw the attachment.
 9

Rule 256 - Appointment of Curator: (1) In order to provide for the custody of property which cannot be conveniently
stored or kept in the court-house, the District Judge may appoint for any court or group of Courts a Curator who
shall furnish security in any form applicable to a Government servant, for an amount to be fixed in each case by the
District Judge.

(2) Every Curator and Nazir shall maintain the register of attached moveable in Civil Registers No. 30 and 31
respectively.
(3) The Curator or the Nazir as the case may be shall be responsible for the due custody and preservation of all
property entrusted to him until he delivers it up under the orders of the court.
Rule 257 – Remuneration to Curator: The Curator shall receive such sums for his remuneration and expenses
incurred or the custody and preservation of attached movables as the District Judge by general rule or the Court by special
order, may prescribe.
POWER UNDER OR 21 RULE 43 HAS TO BE EXERCISED ONLY AFTER PASSING OF THE DECREE:
The proceedings in execution of decree are commenced by the decree holder under Rule10 of Order 21 and such an
application shall contain the particulars as laid down in Order 21 Rule11. Rule 43 is one of the Rules contained in
Order 21 under which movable property is ordered to be attached. In the aforesaid provision it has been mentioned that
the attachment of movable property shall be made by actual seizure and the same would be kept by the attaching officer in
his own custody and if the same is subject to speedy decay, it can be sold by the attaching officer at once. It seems
that Order 21 Rule 43 deals with the exercise of power only after the passing of the decree and not before. If Order 21
Rule 43was to apply at the initial stage i.e. at the time of filing application under Section 31 of the State Financial
Corporations Act, of the Act and the attaching officer could seize the machinery etc. before the passing of the decree,
it would amount to pre-judging the matter. The exercise of such a power could lead to miscarriage of justice,
inasmuch as during pendency of the application under Section 31 an industrial concern might make the payment
of the outstanding amount. Assuming for a moment that the movable property of defaulting industrial concern is
seized before the passing of the final decree, it would necessarily mean the stoppage of functioning of the industrial
concern and if the payment is made by such an industrial concern at some stage during the pendency of the matter before
the District Judge, the seizure of the movable property would cause an irreparable loss to the industrial concern.
Rather an industrial concern would stand benefited if the movable property is not-seized at the initial stage and therefore,
the appellant cannot have any legitimate grievance about non seizure as it admittedly remained with appellant during the
pendency of the petition under Section 31 before the District Judge.
 10

Goods in possession of a pledgee cannot be seized under Rule 43 of Order 21:

The defendants, who were constituents of the plaintiff-bank, took advances under an agreement from the plaintiff on
the security of certain agricultural produce. A part of the produce was kept in the defendants' godown and the key of
the same was handed over to the plaintiff, thus giving the goods in its possession. The defendants owed a sum towards
Income Tax dues and the Income Tax Officer issued a certificate under Section 46(2) of the Indian Income Tax Act,
1922, and forwarded it to the Collector and by a letter called upon him to make recoveries by attachment and sale of
the goods lying in the defendants' godown. The Collector forwarded the letter to the Mamlatdar for taking necessary
action. The Circle Officer under order from the Mamlatdar went to the godown and. notwithstanding the plaintiff's
protest, attached the goods. During the subsistence of the attachment the goods were badly damaged as a result of rain
water leaking through the roof of the godown. The plaintiff filed a suit against the defendants, the State of Bombay, the
Collector, the Mamlatdar, the Circle Officer and the Union of India, alleging that the attachment and seizure of goods
from its possession was illegal and claimed the amount of the debt secured by the pledge.
It was contended inter alia by the Government that it was not responsible for the illegal attachment as it had
not ratified the act of officers attaching the goods. It was held that the distinction between Rules 43 and 46 of Order
21 of CPC is of prime importance. When the goods are in possession of a pledgee, the seizure of the goods would
amount to wrongful deprivation of the goods which the pledge is entitled to retain in his possession.
Whether a moveable property in possession of custodian in pursuance of an order of attachment before
judgment can be restored in favour plaintiff, after withdrawal of their suit, particularly when they were neither DHr nor
JDr, nor they have any legal claim. A suit under Arbitration Act, 1940 was withdrawn in which a direction to the
appellant to produce and hand over 10 tons. Of tissue papers given in his custody by the commissioner, or in the
alternative to deposit certain sum of money towards the price of the paper. In case of default, the appellants shall
gave right to get it produced or released through the process of court. It was contended that the paper stock was under
hypothecation to the Bank even before the attachment was ordered. In this context the High Court of Allahabad
(K.A.Alwa vs. Jagannath Prasad Varshney & others 1992 (3) AWC 1423=MANU/UP/0692/1992) examined the
scope of or 21 Rule 43A CPC and observed that the intention of Rules 43 and 43 A was to provide procedure about
property other than agricultural produce in possession of JDr and as per Rule 43 a provision is made for attachment by
actual seizure and that the attaching officer shall keep the
 11

property in his custody and the proviso added to Rule 43 indicates that when the property seized was subject to
speedy decay, the attaching officer may sell it at once. It was pointed out those Rule 43 deals with attachment of
movable properties in possession of JDr whereas in respect of property not in possession the JDr the provisions
are under Rules 44 to 46. Rule 43 provides attachment of property of which the JDr is full owner and in
possession. Rule 46 provides procedure where the property of JDr is not in his possession but in possession of third
party. Rule 47 deals with case where the JDr is not full owner. The procedure that has been provided under Rule 43
is the attachment by actual seizure.

For the application of Rule 43, two conditions shall be satisfied. First, there must be an order for attachment
and secondly, actual seizure of property in execution of order. Because of actual seizure, the attached property comes
to the possession of court. Either it is taken possession of custodian or other person; it shall be regarded with the court
only. Rule 43 A contemplates three contingencies. One, as per sub-rule 1, in case the attaching officer does not act
under the proviso to rule 43 (where the property seized from the possession of JDr was subject to speedy decay) the
attaching officer was to sell it at once. Two, if he does not sell it away, at the instance of JDr or the DHr or at the
instance of any other person interested in such property, the attaching officer may leave the property in the village in
the custody of a respected person.

Duties of custodian under Rule 43 A :

a) If custodian fails to produce the property in spite of receipt of notice before an officer deputed, the court shall
direct the custodian to produce the property, but only on an application by JDr or DHr or some other person
interested in the property.

b) in consequence of failure of the custodian to produce the property in specie or did not produce it in the same
condition as it was when it was entrusted him, he shall be liable to pay compensation for any loss or damage
caused by him due to his default;
There is another aspect of the matter. Or 38 Rules 9 and 11-A shall be read conjointly with Or 21 Rule 43-A. In
nutshell, attachment before judgment can be withdrawn when security is furnished or when suit is dismissed or when
the suit is dismissed in default. But the attachment does not revive merely because the suit has been restore (Vide rule
11-A (2) of Order 38)

II. PROVISIONS AS TO AGRICULTURAL PRODUCE UNDER

ATTACHMENT (OR 21 RULE 45):

(1) Where agricultural produce is attached, the Court shall make such arrangement for the custody thereof as it may
deem sufficient and, for the purpose of enabling the court to make such arrangements, every application
 12

for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered,( and the
applicant shall deposit in court within a date to be fixed by court, such sum as court may deem sufficient to defray
the cost of watching and tending the crop till such time) (AP Amendment as in Madras)

(2) Subject to such condition as may be imposed by the Court in this behalf either in the order of attachment or in
any subsequent order, the judgment- debtor may tend, cut, gather and store the produce and do any other act
necessary for maturing or preserving it; and if the judgment-debtor fails to do all or any of such acts, the decree-
holder may, with the permission of the court and subject to the like conditions, do all or any of them either by
himself or by any person appointed by him in this behalf and the costs incurred by the decree-holder shall be
recoverable from the judgment-debtor as if they were included in or formed part of, the decree.

(3) Agricultural produce attached as a growing crop; shall not be deemed to have ceased to be under attachment or
to require re-attachment merely because it has been severed from the soil.

(4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is
likely to be fit to be cut or gathered, the Court may suspend the execution of the order for such time as sit thinks
fit, and may, in its discretion, make a further order prohibiting the removal of the crop pending the execution of the
order of attachment.

(5) A growing crop which from its nature does not admit of being stored shall not be attached under this rule at any
time less than twenty days before the time at which it is likely to be fit to be cut or gathered.

III. ATTACHMENT OF SALARY OF PRIVATE EMPLOYEE SHALL BE UNDER RULE 48A OF OR 21:

Rule 48 of Or 21 contains procedure for the attachment of salaries or allowances of public officers or servants of
Railway Company or local authority. There is specific provision on the line of Rule 48 for the attachment of the salary
of a private servant prior to the Amendment Act 104 of 1976 whereby Rule 48 A is introduced to meet this
contingency. Earlier the courts were of the view that the salary and allowances of under Rule 46 only and not under
Rule 48 of Or 21. It cannot be in doubt that the salary of a private servant after it becomes payable is a debt for that
purpose of attachment and so, it is Rule 46 of Or 21 that can be used for attachment of salary and allowances of a
private employee not covered by the procedure under Rule 48 of Order 21.

Liability of the Garnishee when arises? The Decree holder is not better placed than the JDr in recovering the
amount due by JDr from his debtor, by enforcing the Rule 46 and 46A of Or 21. Various views are expressed
by
 13

different courts to confirm this opinion. If an amount is kept in deposit by a JDr with a third party who has a claim
upon the said amount, the JDr`s decree holder is not entitled to proceed against the said amount until it was
determined that such third person has no claim upon the said amount. The DHr cannot by means of attachment
stand in a better position as regards the garnishee than the JDr and obtain from him a relief which the JDr himself
cannot obtain. A contingent debt i.e., a sum of money payable only when a contingency happens or does not
happen in future and it is not the same thing as a present debt which is merely payable in future. Such a contingent
debt due to the JDr from his debtor cannot be attached like a present debt payable to the JDr (Shanti Prasad vs.
Director of Enforcement (1963) 2 SCR 297. The line of these judgments would show that the DHr cannot proceed
to attach the money not instantly payable to the JDr. Such money payable to the JDr by his debtor only after the JDr
delivers certain land to his debtor; such amount cannot be attached under Rule 46 because a final decree is yet to
be passed in favour of the JDr and against his debtor (garnishee).

(Khazim Jawaz Jung vs. Mir Mohammad Ali Jaferi and another AIR 1972 AP 70)

Objection by Garnishee when to be raised: It was open to the garnishee to raise any such dispute
immediately after the order of attachment is made or at least while making the deposit. If neither any such
objection is taken nor the application was contested even though the authority was represented through the government
pleader and allowed the proceedings come to an end and the orders of garnishee attachment have e become final as they
remained unchallenged, but only when the DHr filed application for cheque to withdraw the amount of deposit, the
garnishee cannot raise the objection for the first time.

(Kuchimanchi Nagamani vs. Mantri Prasada Agnihothrudu 2001

(1) ALD 105 Attachment of salary or allowances of a government servant, a Railway company or local
authority (Or 21 Rule 48):

Sec. 39 CPC has no application to the attachments under Rule 48 of Or21 CPC as held by the Apex Court in Selam
Advocates` Bar Association vs. Union of India AIR 2005 SC 3353 Attachment can be made irrespective of local
limits of Court: Such Government employee`s salary and allowances can be attached by the Court executing the
decree, irrespective of the fact whether the JDr or the disbursing officer is or is not within the local limits of the Court`s
jurisdiction, however subject to Section 60 of the Code and may direct the disbursing officer to withheld from such
salary or allowances either in one payment or by monthly installments as the court may direct; and upon notice of the
order to such officer as the appropriate government may by notification in the Official Gazette appoint in this behalf-
(Sub-Rule 1)
 14

a) Where such salary or allowances are to be disbursed within the local limits to which Code is applicable, the
officer or other person whose duty it is to disburse the same shall withhold and remit to the court the amount
due under the order or the monthly installments as the case may be;

b) where such salary or allowances are to be disbursed beyond local limits of the court, the officer or other
person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the
salary or allowances to be disbursed shall remit to the court the amount due under the order, or the
monthly installments, as the case may be, and shall direct the disbursing authority to reduce the aggregate
of the amounts from time to time to be disbursed by the aggregate of the amounts from time to time
remitted to the court.

If previous attachment is pending on same salary or allowances:

Where the attachable proportion of such salary or allowances is already being withheld and remitted to a court
in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate governments
shall forthwith return the subsequent order to the court issuing the order together a full statement of all the
particulars of the existing attachment. (Sub-Rule 2)

Every order under the above rule, unless it is returned as per sub rule (2), shall without further notice or
other process binds the government or Railway company or local authority or corporation while the JDr is within
for beyond local limits, if he is receiving salary or allowances payable out of consolidated Fund of State, Railway
Company etc., and the Government company or Local Authority etc. are liable for any sum paid in contravention of
this rule. (Sub-rule 3)

What is appropriate Government? The explanation to Rule 48 of Or21 contains the meaning this expression as-

i) as respects any person in the service of the central Government, or any servant of a railway
administration or of a cantonment authority or of the port authority of a major port, or any servant of a
corporation engaged in any trade or industry which is established by a central Act, or any servant of a
Government company in which any part of the share capital is held by the central government or by more
than one state Governments or party by the Central Government and partly by the one or more State
Governments, the Central Government;

(ii) as respect of any other servant of the Government, or a servant of any other or local authority, or any
servant of a corporation engaged in
 15

any trade or industry which is established by a Provincial or State Act, or a servant of any other
Government company, the state government.
Attachment of salary or allowances of private employees:
(1) Where the property to be attached is the salary or allowances of an employee other than an employee is
within the local limits of the court’s jurisdiction, may order that the amount shall, subject to the provisions
of section 60, be withheld from such salary or allowances either in one payment or by monthly installments
as the court may direct; and upon notice of the order to such disbursing officer, such disbursing officer shall
remit to the court the amount due under the order, or the monthly installments, as the case may be.

(2) Where the attachable portion of such salary or allowances is already being withheld or remitted to the court
in pursuance of a previous and unsatisfied or of attachment, the disbursing officer shall forthwith return the
subsequent order to the court issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2),
shall, without further notice or other process, bind the employer which the JDr is within the local limits to
which this Code for the time being extends and while he is beyond those limits, if he is in receipt of salary or
allowances payable out of the funds of an employer in any part of India; and the employer shall be liable for
any sum paid in contravention of this rule.
 16

For a court to exercise the powers under Or21 Rule 48A, it is mandatory that the disbursing officer
of the judgment debtor shall have to be within the local limits of its jurisdiction. (Nanduri Vijaya
Bhaskar vs Sathyamsetty Veera Venkata Apparao 1987 (2) APLJ 225 Though JDr and Garnishee
are outside local jurisdiction of executing Court attachment can be ordered: The DHr filed EP
against Judgment Debtors 1 to 4 under Or 21 Rule 22 and it was pending. The DHr also filed another EP
as a simultaneous execution petition to attach the salary and retirement benefits of the JDr No.2 and
permission was granted by the court to take simultaneous execution. It is contended that when the
earlier EP is still pending, the 2nd application is not maintainable and that the JDr No2 is still working
in Forest department and since the JDr and the garnishee are residing outside the jurisdiction of the
Court, which passed the order of attachment, the court has no jurisdiction and therefore, the execution
petition is liable to be dismissed. Earlier the AP High Court took the view in Adithya Electronics,
Hyderabad vs. A.S. Impex Ltd., New Delhi 2004 (2) ALD 779, that since the JDr and the garnishee are
siding at Piler, which is outside the jurisdiction of the executing court, the attachment cannot be
granted. Basing on this petition, the executing court held that simultaneous execution is not
maintainable. In Shrim Chits Pvt. Ltd. Vs. V.
Govindaswamy 2011

(3) ALT 528, the High Court considered the questions- (a) whether simultaneous execution is
maintainable but the ground for the dismissal recorded by the Court below are not sustainable; and (b)
whether the court has no jurisdiction. Because the second EP was filed after taking permission from the
court and such power of the court is not disputed, the first question was answered that the second
EP is maintainable as a simultaneous execution. On fact, Adithya Electronics case was found not applicable
because that case relates to debts which are to be attached, belonging to the JDr which are available with the
garnishee. It was observed by the court that so far as the attachment of salary is concerned, Or21 Rule
48 empowers the court to attach the salary and allowances of the government servant, whether the
JDr or the disbursing officers is or is not within the local limits of the jurisdiction of the court and the
only limitation
 17

is that it should be done subject to the provisions of Sec.60 CPC. But, in the case on hand, as the earlier EP is
pending and the objections, if any, under Rule 22 of Or21 have to be heard and decided by the court, and
therefore, after considering the objections in the earlier EP further steps can be taken in the EP and
so, dismissal of the EP by the court below on the ground that the JDr and the garnishee are residing
outside the jurisdiction and the EP does not lie, is not sustainable.

DHr can proceed against any of the JDr of his choice including the guarantor in a joint decree:

DHr by filing EP recovered part of the amount due from some Judgment Debtors and later filed EP again
against remaining JDR for recovery of balance decretal amount by way of attachment of salary of
that JDr. The said Judgment-Debtor contended that joint liability is different from joint and several
liability and the DHr cannot divide amount due under the decree and recover those portions from
judgment debtors as per his choice and because the DHr had chosen to proceed against the other Judgment
Debtors earlier, he cannot subsequently seek attachment of his salary. Dismissing the EP the executing court
felt that petitioner who chose to proceed against other respondents earlier, has to proceed against those
respondents only for recovery of balance amount but cannot proceed against the remaining respondent
half way, for the realization of the balance amount. The High Court held that as per section 43 and
44 of the Contract Act, the decree holder is entitled to proceed against guarantors for execution of decree
in the first instance without proceeding against the principal debtor. Any of the Judgment Debtors
has no right to say that he is not bound by the decree and his right is only to claim contribution from the
Judgment Debtors if they happen to be co-sureties. If such objecting JDr happens to be a guarantor, his
right is to proceed against principal debtor for recovery of the amount paid by him to DHr. It is the
opinion of the court that the DHr has a right to proceed against any of the judgment debtors including
guarantor in the first instance in view of Sec.128 of Contract Act and that liability of surety is co-
extensive with that of principal debtor unless it is otherwise provided by contract. In case the
decree is a joint
 18

decree and it does not place any fetter on the right of DHr to go on against any of the judgement
debtors of his choice for recovery of amount due. ( M.G. Brothers Finance Ltd vs J. Badarinath 2007
(1) ALD 451) But, the view of Karnataka High Court (H.P.Jalajakhsi vs. Karnataka Bank AIR 2003
Kant 280) is somewhat otherwise. That court was of the opinion that the execution of the decree against
the guarantor should be a second option. On the grounds of equity, the court presided over by Justice M.F.
Saldana held that if the DHr – a banking institution does have the legal right to recover the decretal
amount not only from the principal debtor but to an equal extent from the surety. But it is tenable
objection taken by the JDr that where the amount is irrecoverable from the principal debtor or where the
mode of recovery is so very weak or so abnormally long-winded, that a court would consider it almost on
par with irrecoverability that the Bank could then seek to recover the amount from the surety. It was
observed that there is some equitable justification in the plea put forward by the JDr (Guarantor)
that while the surety cannot get away from the legal liability that she may perhaps be justified in
pointing out that where the amount is being recovered from the principal debtor, that only if that avenue
fails that the enforcement should be against her. But with great respect to the High Court of Karnataka, this
view appears to be not a binding precedent because the court considered that the JDr being a teacher is in
penury and so exercised a discretion which is not vested in the court in view of specific provisions of the
Contract Act in sections 43, 44, and 128.
 19

Presented by : Sri G.Vallabhanaidu,

XI Addl. District Judge, Gudivada.
INRODUCTION:

When a decree is passed, the Court may require the judgment debtor to pay any sum to the decree holder
(or the plaintiff). If the judgment debtor did not comply with the decree by not making the payment to the
decree holder, the Court can in execution of its decree, attach the movable and immovable properties of him
and recover the amount due by disposal of these assets. However, certain assets are not liable to
attachment under a Court decree.
A decree may also be executed on the application of the decree holder by attachment and sale or only sale
without attachment of property as specified under S.51 (b) CPC. The subject dealing with the
attachment of property is governed by the Code of Civil Procedure, 1908 under Sections 60 to 64 and
Order 21 Rules 41 to 57.

2.ATTACHMENT – MEANING & OBJECT:

Definition of Attachment:- The word ‘attachment’ is not defined anywhere in CPC 1908.
The word ‘attachment’ would only mean “taking into the custody of the law the person or property of one
already before the court, or of one whom it is sought to bring before it.” It is used for two purposes:

1. to compel the appearance of a defendant; and

2. to seize and hold his property for the payment of the debt.

An executing court is competent to attach the property if it is situated within the local limits of the
jurisdiction of the court. The place of business of Jdr is not material.
The primary object of attachment is to give notice to the Jdr not to alienate the property to anyone and
also the general public not to purchase or in any other manner deal with the attached property in execution
proceedings. Attachment and sale are to be read disjunctively where attachment is not a condition

precedent.1 So, sale without attachment is a mere irregularity and it does not vitiate the sale.

State of Haryana and Ors. vs. Narvir Singh and Anr., reported at (2014) 1 SCC 105
1
 20

PROPERTY LIABLE TO ATTACHMENT:

Under S.60 (1) CPC, 2 the property liable to attachment and sale in execution of decree are:-

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, save as hereinafter mentioned, all other saleable property, movable or immovable,
belonging 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:
Under Or.38 Rule 5 of CPC, the provision under Or.38 Rule 5 of C.P.C. is drastic and extraordinary
power. Such power should not be exercised mechanically or merely for the asking, it should be
used sparingly and strictly in accordance with the rule. The purpose of Or.38 rule 5 of C.P.C. is not
to convert an unsecured debt into a secured debt. An attempt by a plaintiff to utilize the provisions
of Or.38 Rule 5 of C.P.C., as a leverage for coercing the defendant to settle the suit claim should be
discouraged. Instances are not wanting where bloated and doubtful claims are realized by
unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants
for out of court settlements under threat of attachment.

PROPERTY EXEMPETED FROM ATTACHMENT:

a. According to S. 60 (1) CPC, the following property of the judgment debtor shall not be liable to

such attachment3 or sale:

1. Personal property
(i) clothes, cooking vessels, beds of the judgment debtor, his wife and children, and personal ornaments
which as per religious usage, cannot be parted with by any woman

2
Jai Ganesh SRA CHS (Prop.) and Another Vs. State of Maharashtra and Others, Writ Petition No. 2270 of 2014
Pandugayala Subbarayadu Vs. Kattamuri Sri Krishna, 2008(4)ALD454; 2008(4)ALT417.
3
State of Haryana and anr. Vs. Baldev Raj and anr.,(2008)152PLR204; Balbir Singh Vs. Dilbagh Singh and anr,
(2000)126PLR33.
 21

(ii) tools of artisans – court decisions have held that it only includes movable tools and not immovable
equipment.

(iii) if the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed
grain as the court deems fit 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

(iv) houses and other buildings along with the materials and the land appurtenant thereto
which is necessary for their enjoyment, which belongs to an agriculturist or a labourer or any domestic
servant and is occupied by him

(v) all moneys payable under a policy of insurance on the life of the judgment debtor – no conditions
have been stipulated as to when the money should become payable, i.e., policies which mature after a fixed
term or after the death of the assured. In certain circumstances, policies for the benefit of a judgment
debtor’s wife and children under the Married Woman’s Property Act, 1874, are free from attachment.

(vi) tenancies in respect of a residential building covered by the provisions of any Rent Control Act
2. Salary

(i) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any
other employer, or payable out of any notified service family pension fund and political pension

(ii) the wages4 of labourers and domestic servants, whether payable in cash or kind

(iii) salary to the extent of the first Rs. 1,000 and 2/3 of the balance in execution of any decree other
than a decree for maintenance. If any part of the attachable salary has been under attachment, for
24 months, then such portion shall be exempt from attachment until the expiry of a further period of 12
months. Where the attachment has been made in execution of one decree, it shall, after the attachment
has continued for a total period of 24 months, be finally exempt from attachment in execution of that
decree

4
Guguloth Babu Rao and Others Vs. M/S. Surakhsa Chit Funds, Yellandu, and anr., AIR2011(NOC)153(AP)
 22

(iv) 1/3 of the salary in execution of any decree for maintenance

(v) salary payable to persons covered by the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act,
1957,

(vi) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act,
1925, or Public Provident Fund Act for the time being applies, in so far as they are declared by the Acts
to be not liable to attachment

(vii) any allowance forming part of the emoluments of any servant of the Government/ railway / local
authority which has been notified to be exempt from attachment, and any subsistence grant or allowance
made to any such servant while under suspension

(viii) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree.

It is the duty of executing court to verify whether the above provision is adhered to strictly 5 in attaching the
salary and if there is any violation, the appropriate court must take remedial steps to protect the judgment
debtor from unlawful attachment of his salary.

3. Incorporeal property
(i) a mere right to sue for damages
(ii) any right of personal service
(iii) an expectancy of succession by survivorship or other merely contingent or possible right or
interest
(iv) a right to future maintenance
(v) where the Judgment debtor is a person liable for the payment of land revenue, any movable property
which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrears
of such revenue

(vi) books of account

Notwithstanding anything contained in any other law, an agreement by which a person agrees to waive
the benefit of any exemption under this section shall be void.

b. S.61 CPC: Partial exemption of agricultural produce

5
T.Nagammal Vs. M.S.Mani,C.R.P.(NPD).No.1154 of 2012
 23

The State Government may, by general or special order published in the Official Gazette, declare that such
portion of agricultural produce, or of any class of agricultural produce, as may appear to the State
Government to be necessary for the purpose of providing until the next harvest the due cultivation of the
land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of
any class of agriculturists, be exempted from liability to attachment or sale in exaction of a decree.
MODES OF ATTACHMENT:

S.62 and Rules 43 to 54 of Order 21 deal with the manner in which various properties are to be
attached in execution proceedings. Rules 44 and 45 deal with the attachment of agricultural produce.

A. S.62 CPC. Seizure of property in dwelling-house6:-

(1) No person executing any process under this Code directing or authorizing seizure of movable property
shall enter any dwelling-houseafter sunset and before sunrise.

(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy
of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person
executing any such process has duly gained access to any dwelling-house, he may break open the door of
any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs
of the country, does not appear in public, the person executing the process shall give notice to such woman
that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her
reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using
at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

B. The types of the property and mode of attachment7under O21 R 43 to 54are explained as
follows:

6
Rakesh Kumar and ors. Vs. Collector and ors, 2005(1) AWC 630
 24

1. Movable property (other than agricultural produce) in possession of Jdr 8 – by actual seizure. 9 But if
the property is perishable, or the expense of keeping it is likely to exceed its value, it may be sold;

2. Movable property consisting of livestock, agricultural implements or other articles which cannot

conveniently be attached10 – by leaving the same in the custody of respectable person as the custodian.

3. Movable property not in the possession of the Jdr - by an order prohibiting the person in
possession thereof from giving it to the Jdr.

4. Negotiable instrument neither deposited in the court nor in the custody of the public officer11- by
actual seizure and bringing it to the court.

5. Debt not secured by a Negotiable instrument12 - by an order prohibiting the creditor from recovering
the debt and the debtor from paying the debt.

6. Share in the capital of a corporation 13 - by an order prohibiting the person in whose name the share
stands from transferring it or receiving dividend thereon.

7. Share or interest in the movable property belonging to Jdr and another as co-owner14- by a notice to
Jdr prohibiting him from transferring or charging it.

8. Salary or allowances of a public servant or a private employee 15- by an order that the amount shall
subject to provisions of S. 60, be withheld from such salary or allowances either in one payment or by
monthly installments.

9. Partnership property16- by making an order:

a. charging the interest of the partner in the partnership property,

b. appointing a receiver of the share of the partners in profits,

c. directing accounts and inquiries,

7
Vikash Iron and Steel Pvt. Ltd. and anr. Vs. Cto, Jorasanko Charge and ors.,(2009)19VS224(NULL); Aditya Electronics Vs. A.S.
Impex Limited and ors., AIR2004AP321; 2004(2)ALD779; 2004(4)ALT50
8
O21R 43 CPC
9
Chandrakant Ganpat Sovitkar Vs. State of Maharashtra , (2001)1BOMLR369; 2000(4)MhLj581
10
O21 R 43-A CPC.
11
O21 R 51 CPC.
12
O21 R 46 CPC.
13
O21 R 46 CPC
14
O21 R 47 CPC
15
O21 R 48 & 48-A CPC.

16
O21 R 49 CPC.
 25

d. ordering sale of such interest.

10. Property in the custody of court or public officer 17- by notice to such court or public officer,
requesting that such property and any interest or dividend thereon, may be held subject to the order of the
court.

11. i) decree for payment of money or sale in enforcement of a mortgage or charge:

(a). passed by the executing court – by an order of such court;

(b). passed by another court- by issuing a notice to such court requesting it to stay execution

thereof,

ii) decree other than that mentioned above- by issuing notice to

(a). Dhr prohibiting him from transferring or charging it in any way;

(b). the executing court from executing it until such notice is cancelled.,

12. Agricultural produce18- by

(i) affixing copy of warrant,

(a).in case of growing crop, on land on which such crop has grown;

(b). in case of ready crop, the place at which it is lying;

(ii) also by affixing a copy on the house in which Jdr ordinarily resides, carries on business or
personally works for gain or last resided, carried on business or personally worked for gain.Where an
application is for attachment of growing crop, it shall specify the time at which it is likely to be
harvested.

13. Immovable property19 -by an order prohibiting Jdr from transferring or charging it in any manner
and all persons from taking any benefit from such transfer or charge.

PRECEPT:
Precept is an order or direction given by the court which passed the decree to the court which
would be competent executing court to attach any

17
O21 R 52 CPC.

O21 R44; Also refer-O21 R 45 CPC;A. Sambaiah Nayak and Another Vs. The State of Telangana, represented by its Special
18

Public Prosecutor,Cr P. No.15912 of 2016

19
O21 R 54 CPC.
 26

property belonging to the Jdr. The main object of attachment by precept is to obtain an interim
attachment of the property of Jdr situated within the jurisdiction of another court and where it is

apprehended that the Dhr may otherwise be deprived of the fruits of the decree.20

The concept of precept is provided under S.46 CPCand is as follows: (1).Upon the application of the
decree-holder the court which passed the decree may, whenever it thinks fit, issue a precept to any
other Court which would be competent to execute such decree to attach any property belonging to the
judgment-debtor and specified in the precept.
(2) The Court to whom a precept is sent shall proceed to attach the property in the manner prescribed in
regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months unless the period
of attachment is extended by an order of the court which passed the decree or unless before the
determination of such attachment the decree has been transferred to the Court by which the attachment
has been made and the decree-holder has applied for an order for the sale of such property.
The court to which the precept is sent shall then proceed to attach the property in the manner prescribed in

regard to the attachment of property in execution of a decree. 21 The attachment under the precept
shall not continue for more than two months unless the period of attachment is extended by an order of the
court which passed the decree or the decree has been transferred, before the determination of such
attachment, to the court by which attachment has been made.
GARNISHEE ORDER:

Order 21 Rule 46-A to 46-I have been newly inserted in the Code of Civil Procedure by the Amendment
Act, 1976. They lay down the procedure in garnishee cases.

20
Karam Chand Vs. Harwinder Singh , E.A. No. 240/2011; In the High Court of Punjab and Haryana at Vs. Raj Kumar , Civil
Revision No.5973 of 2004 Date of Decision:- 20.2.2014
21
Kolmar Group AG Vs. Traxpo Enterprises Pvt. Ltd, Notice of Motion No. 253 of 2015 in Execution Application No. 910
of 2014
 27

Garnishee means a judgment-debtor’s debtor. He is a person who is liable to pay a debt to a

judgment debtor or to deliver any movable property to him. Garnisher is a judgment-creditor (decree-
holder) who initiates a garnishment action to reach the debtor’s property that is thought to be held or
owed by a third party.
A garnishee order is an order passed by an executing court directing or ordering a garnishee not to pay
money to judgment debtor since the latter is indebted to the Garnisher (decree-holder). It is an order of
court to attach money or goods belonging to the judgment debtor in the hands of a third person. It is a
remedy available to any judgment creditor; this order may be made by the court to holders of funds (3rd

party) that no payments are to make until the court authorizes them. 22 The third party is known as
garnishee and the court order is known as garnishee order.
The purpose of the order is to protect the interest of the creditors. An order served upon a garnishee
requiring him not to pay or deliver the money or property of the debtor (defendant) to him and / or
requiring him to appear in the court and answer to the suit of the plaintiff to the extent of the liability
to the defendant.
The primary object of a garnishee order is to make the debt due by the debtor of the judgment
debtor available to the decree holder in execution without driving him to the suit. The court may, in the
case of debt (other than a debt secured by a mortgage or charge) which has been attached under

Rule 46, upon the application of the attaching creditor, issue a notice23 to garnishee liable to pay such
debt, calling upon him either to pay into court the debt due from him to the judgment debtor or so much
thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause
why he should not do so.
The order contemplated by Rule 46 A is discretionary and the court may refuse to pass such order if it is
inequitable. The discretion, however, must be exercised judicially. Where the court finds that there is
bona fide dispute

22
Motor Industries Co. Ltd. Vs. Meetco (London) Ltd. and ors., 166(2010)DLT631; Global Trust Bank Ltd. v. Fargo Freight
Ltd. 2001 VI AD (Delhi) 920
23
K.Y. Thomas Vs. Safe Guard Chities, OP(C).No. 1615 of 2013
 28

against the claim and the dispute is not false or frivolous, it should not take action under this rule.
If money is payable to the judgment debtor on certain contingencies, the garnishee cannot be asked to
make payment unless those contingencies have taken place. Similarly, garnishee proceedings cannot
be taken in respect of a debt which cannot be attached under the code. Where the garnishee disputes his
liability, the court must raise an issue, and determine the liability of the garnishee. The word ‘may’ in
the rule means that the rule is discretionary and the court may refuse to act under this rule if it
inequitable or if it is likely to cause prejudice to garnishee.
R 46-A requires a notice to be issued to a garnishee before a garnishee order is passed against him and

failure to issues notice will make the order null and void in the eye of law. 24 The payment made by the
garnishee pursuant to such notice is treated as a valid discharge to him as against Jdr. Court may direct
such amount to be paid to Dhr towards the satisfaction of the decree and costs of the execution. If he
garnishees fails to pay and not appear or shows cause to the notice the court may order garnishee to
comply with notice as if it is a decree.
Costs in garnishee proceedings are at the discretion of the court and the order passed is also appealable
as decrees. And a wrongful garnishment may give rise to an action for damages. The provisions under
Order 21 Rule 46 A & B, are applicable to the execution of the decree, which is finally passed and not

pending adjudication.25

DETERMINATION OF ATTACHMENT:

As per O21 R 55 -58CPC, an attachment under the code shall be determined 26 in the following
circumstances:

1. Where the decree amount is paid;

2. Where the decree is otherwise satisfied;

3. Where the decree is reversed or set aside;

24
M/S.Sundaram Bnp Paribas Home Vs. Mr.Mir Ali and anr., O.S.A.NO.109 of 2011
25
Hi Tech Housing Projects Pvt. Ltd.Rep.by Its Authorised Signatory S.Gajendra Bharathy Vs. Exim Rajathi India P.Ltd
Rep.by Its Managing Director M.Rajasekar, A.Nos.5249 and 5250 of 2012 in C.S.No.776 of 2012 26 C.S.Mani (Deceasad)
by Lr C.S.Dhanapalan.Vs. B.Chinnasamy Naidu (Deceased) by Lrs, CIVIL APPEAL NO. 5798 OF 2002,decided on Aug-
31-2010
 29

4. Where the court upholds objection against the attachment and makes an order releasing the
property;

5. Where after attachment the application for execution is dismissed;

6. Where the attaching creditor withdraws attachment;

7. Where the Dhr fails to do what he is bound to do under the decree;

8. Where the suit of the plaintiff is dismissed;

9. Where the attachment is ordered before judgment and the defendant furnishes security;

10. Where there is agreement or compromise between the parties;

11. Where the attaching creditors abandons the attachment.

If there is nothing on the record showing that the payments have been made as referred to by the judgment

debtor in his application for removal of attachment under O21 R 55, the claim shall be rejected.27

OBJECTIONS TO ATTACHMENT:

All objections to attachment, 28 including questions of right, title and interest in the property attached,
have to be decided by executing Court and not by a separate suit. Objection to attachment of property under

Order 21, Rule 58, are frequency responsible for great delay in the disposal of the execution cases 29. Such
objections are at time collusive and should be scrutinized with care and disposed of promptly.
Adjudication of such objections or claims should be confined to the points indicated in Rules 58 and 59 of
Order 21. Adjudication of any claim or objection is appealable like a decree. When the Court dismiss any
claim or objection under Order 21 Rule 58(1), the party may file an application under Section 151 CPC for
restoration and for re-investigation or he may also file a suit under Order 21 Rule 58(5) within one year
from the date of dismissal for default.
ATTACHMENT IN EXECUTION BY SEVERAL COURTS:

27
National Cooperative Consumer Federation of India Vs. Kidar Nath Babbar, EA(OS) 303/2015,decided on:Apr-21-2015;
State Bank of India Humnabad Branch, Through Its Manager Humnabad Vs. Rajshekhar and Others, R.S.A.No. 7522 of 2010
28
Rajan alias Rajan Gopinathn V. Dr. D. Jayashree Nayar and Leela, 2010(1)KLT142;Sbi Home Finance Limited Vs.
Credential Finance Limited and ors, AIR2001Bom179; 2001(2)ALLMR1
29
Gurram Vijaya Kumar Vs. Malla Ramachandra Rao Prasad and ors., 2008(1)ALD543; 2008(3)ALT667.
 30

S.63CPC: Property attached in execution of decrees of several Courts.-

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts
than one, the Court which shall receive or realize such property and shall determine any claim thereto and
any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in
grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of
such decrees.
Section 63 of the CPC only provides the court in which the claims of any property under attachment are to
be adjudicated. The said court has to be of the court of the highest grade and if there is no difference in

grades between the courts then the court under whose decree the property was first attached.30 It does
not provide that the payment has to be made to the decree holder attaching first.

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT:

S.64CPC:Private alienation of property after attachment to be void31.-

Where an attachment has been made, any private transfer or delivery of the property attached
or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies
contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Explanation-For the purposes of this section, claims enforceable under an attachment include
claims for the rateable distribution of assets.
The alienation however is not absolutely void against the entire world but void against the claims
enforceable under the attachment. S.64 (2) clarifies that this section will not apply to a transfer of a
property in pursuance of a contract entered into and registered before attachment.

The primary object of S.64 is to prevent fraud on Dhr and has to be construed strictly.32It was
intended to protect the attaching creditor, but if

Motor Industries Co. Ltd. Vs. Meetco (London) Ltd. and ors., 166(2010)DLT631
30

K. Padma Vs. K. Ramachandra and Others, Writ Petition No. 14876 of 2008 (GM-DRT),decided on Dec-18- 2014; SumikIn
31

Bussan International Vs. Manharlal T. Mody , 2004(4)BomCR860; 2004(4)MhLj919.

 31

the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment,
the contractual obligation arising there from must be allowed to prevail over the rights of the
attaching creditor and cannot bring the property to sale as if it remained the absolute property of the
judgment-debtor.
WARRANT OF ATTACHMENT:

S.136 of CPC: Procedure where person to be arrested or property to be attached is outside district is as
follows:-
Where an application is made that any person shall be arrested or that any property shall be attached
under any provision of this Code not relating to the execution of decrees, and such person resides or
such property is situate outside the local limits of the jurisdiction of the Court to which the application is
made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and
send to the District Court within the local limits of whose jurisdiction such person or property reside or is
situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or
attachment.
The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to
be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or

made such warrant or order of the arrest or attachment. 33

Where a person to be arrested or movable property to be attached under this section is within the
local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal
or at Madras or at Bombay, the copy of the warrant of arrest or of the order of attachment, and the
probable amount of the costs of the arrest or attachment, shall be sent to the Court of Small
Causes of Calcutta,

Tata Capital Ltd. and Another Vs. Anand Swarup Oberoi and Another, Chamber Summons No.54 of 2013 In Execution
32

Application No.828 of 2012.

Tummuri Suryanarayana Vs. Jagatha Seshagiri Rao and Others, 2000(5)ALD400; 2000(3)ALT746

33
Aditya Electronics Vs. A.S. Impex Limited and ors., AIR2004AP321; 2004(2)ALD779
 32

Madras [or Bombay], as the case may be, and that Court, on receipt of the copy and amount, shall
proceed as if it were the District Court.

CONCLUSION:
Finally, it clearly appears that for the enforcement of a decree or order passed, there must be
attachment of the property of the judgment debtor if he made failure by nonpayment to decree holder
and not allowing him to enjoy the benefits of the decree or order.
In true sense the execution gets completed only when the judgment debtor or decree holder receives
the money or other thing for which the decree holder is lawfully entitled to obtain through the judgment or
decree or order. The court must with due regard to the provisions enumerated in this code about what
properties can be and cannot be attached in the prescribed manner and by application of mind, pass a
requisite order of attachment in execution of a decree. The outcome of the attachment order should be for
rendering justice to the decree holder in providing him the decree amount by not allowing the Judgment
debtor to escape from the clutches of law.
 33

Presented by : Smt. S.Sarada Devi,

XIII Addl. District Judge, Vijayawada.

'Execution' is the last stage of any civil litigation. There are 3 stages in litigation- a.
Instituation of litigation; b. Adjudication of litigation; and c. Implementation of litigation. Implementation of
litigation is also known as 'Execution'. The term 'Execution' has not been defined in the CODE. The
expression 'Execution' simply means the process for enforcing or giving effect of the judgment of the
court. The principles governing execution of decree and orders are dealt with in sections 36 to 74 and
Order 21 of the civil Procedure Code.
Order 21 of the civil Procedure Code deals with solemn act of Execution of the decrees passed
by the Courts from grassroots to the top. Ultimately, after judgment attains finality or where there is no stay
in the execution by any Appellate or Revisional Courts, it is the Court of original jurisdiction which
performs this solemn act of implementation of the execution. It has been often seen that in view of less
number of units prescribed for execution of the decree, the executions are not given that much time
and importance as required and desired. It is only the 'Execution', which reveals and signifies the
importance of the decrees to be passed and the pedestal of the court and sanctity of the document. As such
the decrees are required to be executed with force, so that the decree holder having a document containing
declaration of his rights may not feel cheated or helpless having earned no fruits of the lis got settled
by him from the Court even after spending decades altogether. The 'Execution' is complete when the
decree holder gets money or other thing awarded to him by the judgment, decree or order of the Court.
Application for Execution of decree:

All proceedings in 'Execution' commences with the filing of an application for execution.
Following persons may file an application for execution: 1. Decree holder 2. Leal representative of the
decree holder 3. Representative of a person claiming under the decree holder and 4. Transferee of the
decree holder in some cases.
 34

Court which may execute a decree:

Section 38 of the CODE specifies that a decree may be executed either by the Court who
passed it or by the Court to which is sent for execution.
Section 37 of the CODE defined the expression 'Court which passed a decree'.
Sections 39 to 45 provide for the transfer for execution of a decree by the Court which passed the
decree to another Court, lay down conditions for such transfer and also deals with powers of executing
court.
Modes for execution:

Sections 51 to 54 describe the procedure in execution or mode for execution .

Modes for executing decree under Section 51 are as follows:

a. By delivery of any property specifically decreed. Property may be

movable or immovable:

b. The attachment and the sale of the property or by sale without attachment of the
property:

c. By arrest and detention:

d. By appointing a receiver:

e. A residuary clause and comes to play only when the decree cannot be executed in any of the
modes prescribed under clauses (a) to (d) Attachment of the property:
A decree may also be executed on the application of the decree holder by attachment and sale or
only sale without attachment of the property. The Code recognizes the right of the decree holder to
attach the property of the judgment debtor in executing proceeding and lay down the procedure to effect
attachment. The word 'attachment' has not been defined in the Code. The attachment can be
understood as the act or process of taking, apprehending, or seizing property by virtue of a judicial order.
Thus the attachment is an order from a court to hold a debtor's property to prevent it being sold.
However the attachment does not necessarily physical seizure or physical possession. Some properties
are not amenable to have physical
 35

seizure or possession. For all practical purposes the attachment can be understood as control or the
authority over the property.
'Attachment' is a prohibitionary order directing the person against whom attachment is made, not
to indulge into any transaction in respect of the attached property until further orders. Attachment is
different from sale of property. Even without attachment the decree holder can directly file an application
under by section 51 (b) of CPC for sale of the property. However in the case of an immovable property
there is no sale without an attachment. When a particular item or thing or property is attached , the
judgment debtor looses his rights of alienation over said item. The control over the attached property rests
with the court which makes the order of attachments.
Sections 60 to 64 and Rules 41 to 57 of Order 21 deal with the subject of attachment of the
property. Rules 252 to 257 Civil Rules of Practice deal with the procedure relating to attachment of
movable property.
Section 60 CPC enumerates and specifies the properties which are liable to be attached and sold
and which are not liable to be attached or sold in execution of a decree.
The attachment of the salary is an important one since the decree holders generally prefer the
salary attachment to any other attachment in these days. As per section 60 the salary includes basic pay and
allowance which are not exempted from the attachment. In case of execution of decree for maintenance
except 1/3 salary the remaining portion of the salary is liable for attachment and same can be
continued till further orders may be up to retirement of the employee/ JDR. But in the case of other
decrees, the attachment of salary has several limitations. The first 1,000 and 2/3rds of the reminder of
the salary is excluded from attachment and the attachment will be for 24 monthly deductions either
continuously or with in certain gaps. The period of attachment should not continue beyond
deductions for24 months in the same decree. Even in respect of different decree there should a gap of
12 months after the 24 monthly deductions. These
 36

exemptions being based on humanization grounds can not be waived even by the JDR.
Section 61 CPC authorizes the government to exempt a part of agriculture produce from
attachment.
Section 62 CPC says: no person executing any process directing or authorising seizure of the
movable property shall enter any dwelling house after sunset and before sun rise.
Section 63 CPC deals with the property attached in execution of decrees in several courts.
Section 64 CPC mandates that private alienation of property after attachment to be void.
Section 46 CPC deals with 'precept' under which the court which passed the decree made
transfer the decree to any other competent court for execution by issuance of a precept to attach any
property belonging to JDR. The duration for percept is 2 months which facilitates the decree holder
to get the decree transferred to the court which can execute the decree.
Order 21 Rule 43 CPC:

1. Attachment of movable property other than agricultural produce in possession of JDR.

i) Where the property to be attached is movable property, other than agricultural produce, in the
possession of the JDR, the attachment shall be made by actual seizure and the attaching officer shall
keep the property in his own custody or in the custody of one of his subordinates, and shall be
responsible for the due custody thereof. When the property ceased is subject to speedy and natural
decay, or when the expenses of keeping in custody is likely to exceed its value, by attaching officer may
sell it at once. AP State Amendment Act provides that when the property attached consists of live stock,
agricultural implements or other articles which cannot conveniently be removed, the attaching officer
does not act under the first proviso to this rule, but he may at the interest of JDR or DHR or any person
claiming to be interested in such property leave it in the village or place where it has been attached.
 37

ii) Whenever an attachment made under the provisions of this rule seizes for any of the reasons
specified in Rule 55 or 57 or Rule 60 of this order, the court may order the restitution of the attached
property to the person in whose possession it was before attachment.
Power under Order 21 Rule 43 has to be exercised only after passing of the decree.
In the aforesaid proviso it has been mentioned that the attachment of movable property shall be
made by actual seizure and the same will be kept by the attachment officer in his own custody and if the
same is subject to speedy decay, it can be sold by the attaching officer at once. The power under
order 21 Rule 43 shall be exercised only after passing of the decree, but not before. If such power is
exercised before passing of the decree would lead to miscarriage of justice.
2. Goods in possession of a pledge cannot be ceased.

When the goods of the JDR are in possession of a pledge, the seizure of the such goods
would amount to wrongful deprivation of the goods which the pledge is entitled to retain in his
possession. The scope of order 21 Rule 43 (A) CPC was examined in the case of K.A. Alwa Vs. Jagannadh
Prasad Varshiney and others 1992 (3) AWC 1423 and held that Rule 43 is the provision made for
attachment by actual seizure and attachment officer shall keep the property in his custody and the proviso
added to Rule 43 indicates that when the property ceased was subject to speedy decay, the attaching officer
may sell it at once. It was further point out that Rule 43 deals with attachment of movable properties
in possession of JDR and the rules of 44 to 46 deal with the property not in possession of JDR. Rule 43
provides attachment of property of which the JDR is full owner and in possession and Rule 46 provides
procedure where the property of JDR is not in possession but in possession of third party. Rule 47 deals
with the case where the JDR is not full owner.

Duties of custodian under Rule 43 (A)

(a) If the custodian fails to produce the property inspite of receipt of notice before an officer deputed, the
court shall direct the custodian to produce the property, but only on application by JDR or DHR or some
other person interested in property.
 38

(b) If the custodian fails to produce the ceased property in the same condition as it was, when it was
entrusted to him, he shall be liable to pay compensation for any loss or damage caused by him due
to his fault.
Order 38 Rules 9 and 11 (A) shall be read conjointly with order 21 Rule 43 (A). Attachment
before judgment can be withdrawn when security is furnished or when the suit is dismissed on
merits or in default. But, the attachment does not revive merely because the suit has been
restored as per rule 11 (A) (2) of order 38.

3. ORDER 21 RULE 44 :

The attachment of agricultural produce shall be made by fixing a copy of warrant at such property
and another copy of warrant at the outer door or other conspicuous part of the house of JDR.

4. ORDER 21 RULE 45 :

PROVISIONS AS TO AGRICULTURLA PRODUCE UNDER ATTACHMENT:

(a) Where agriculture produce is attached, the Court shall make such arrangement for the custody
thereof as if may deem sufficient and, for the purpose of enabling the court to make such arrangements,
every application for the attachment of a growing crop shall specify the time at which it is likely to be fit
to be cut or gathered, and the applicant shall deposit in court within a date to be fixed by court, such
sum as court may deem sufficient to defray the cost of watching and tending the crop till such time. (AP
Amendment as in Madras).

2. Subject to such condition as may be imposed by the Court in this behalf either in the order of
attachment or in any subsequent order, the judgment –debtor may tend, cut, gather and store the produce
and do any other act necessary for maturing or preserving it; and if the judgment debtor fails to do all or
any of such acts, the decree-holder may, with the permission of the court and subject to the like
conditions, do all or any of them either by himself or by any person appointed by him in this behalf and the
costs incurred by the decree – holder shall be recoverable from the judgment –debtor as if they were
included in or formed part of, the decree.

3. Agricultural produce attached as a growing crop shall not be deemed to have ceased to be
under attachment or to require re-attachment merely because it has been severed from the soil.
 39

4. Where an order for the attachment of a growing crop has been made at a considerable time
before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution of the order
for such time as it thinks fit, and may, in its discretion, make a further order prohibiting the
removable of the crop pending the execution of the order of attachment.

5. A growing crop which from its nature does not admit of being stored shall not be attached under
this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or
gathered.
ORDER 21 RULE 46:

The court can attach a debt, share and other property which is not in possession of JDR but in
possession some other person (Garnishee). Such attachment shall be made by a return order of a
prohibition. Rules 46-A to 46-I, which are popularly known as garnishee proceedings, deal with

property in the custody of 3rd person.

Order 21 Rule 47:

Under this rule a share in a movable property in which the JDR has a share or interest can
also be attached.
ORDER 21 RULE 48:

This rule deals with the attachment of salary or allowance of a Government employee.
Order 21 Rule 48 (A) of CPC:

ATTACHMENT OF SALARY OF PRIVATE EMPLOYEE

This provision contains the procedure for the attachment of salaries or allowances of public
officers or servants of railway company or local authority. Amendment Act 1976 has introduced Rule 48
(A) thereby the salary of private servants can be attached. Earlier the Courts were of the view that the
salary and allowances of the employees can be attached only under Rule 46, but not under Rule 48.
There is no doubt that the salary of the private servant after it becomes payable is a debt for the purpose
of attachment. Thus Rule 46 of Order 21 can be used for attachment of salary and allowance of a private
employee not covered by Rule 48 order 21.
 40

Rule 49: deals with attachment of partnership property.

Rule 50: deals with decree against a firm .

Rule 51: deals about attachment of negotiable Instrument. It says the attachment can be made by
actual seizure.
Rule 52: deals with the attachment of property in the custody of a court or public officer. It says the
attachment shall be made by a notice to such court.
Rule 53 of Order 21 deals with attachment of decree.

Rule 54 deals with attachment immovable properties. This rule says the attachment of immovable
property shall be made by way of an order of prohibition. Rule 1-A provides notice to the JDR to attend
the court on the date to be fixed for settling the terms of proclamation of sale. The proclamation shall
be made by way of beat of drum or other customary mode and a copy of proclamation shall be affixed at
the conspicuous places of court revenue office, place of land and grama panchayat etc.,

Rule 55 deals with removal of attachment after satisfaction of decree:-

Where-

1. The amount decreed with costs and all charges and expenses resulting from the attachment of any
property are paid into court, or

2. Satisfaction of the decree is otherwise made through the court or certified to the court, or

The decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and in the
case of immovable property, the withdrawal shall, if the judgment debtor so desires, be proclaimed at
his expenses, and a copy of the proclamation shall be affixed in the manner prescribed by the last
preceding rule.
Rule 56 deals with payment of coin or currency note to the party to the entitled.
Rule 57 of Order 21 deals with the determination of attachment in the following cases:-

(1) where any property has been attached in execution of a decree and the court, for any reason, passes an
Order dismissing the application for the execution of the decree, the court shall direct whether the
attachment shall
 41

continue or cease and shall also indicate the period up to which such attachment shall continue or the
date on which such attachment shall cease.

(2) If the court omits to give such direction, the attachment shall be deemed to have ceased.

Therefore if the Execution Petition is dismissed for any reason, the attachment ceases
automatically though no specific order of raising of attachment is ma
General Principles relating to execution of decree and order:

1. Provisions of CPC relating to execution of decree and order shall be made applicable to both appeals and
suits.

2. A decree may be executed by the court which passed the judgment and decree or by some other court
having competency to implement the same by way of precept.

3. The court which passed the decree may send it for execution to other court either on application
of the decree holder or by the court itself.

4. A court may order for execution of decree on the application of decree holder.

5. All questions arising between the parties to the suit in the decree shall be determined by the executing
the court and not by a separate suit.
From the above discussion it clearly appears that execution is the enforcement of the decree
and orders by the process of court, so as to enable the decree holder to realize the fruits of the decree
and that in execution proceedings attachment place a significant role. Order 21 of the Code is the
lengthiest order containing elaborate and exhaustive provisions for execution of decrees and order,
which takes care of different type of situations and provide effective remedies not only to the decree

holders and judgment debtors but also to the objectors and 3rd parties. Attachment puts a restriction
on the rights of JDR and prolonged attachment will naturally cause severe hard ship to him. Knowingly
or un- knowingly several mistakes are being crept in the process of attachment of properties and
things. We all very well know that some of the drawing officers continue to send attached portion of
salary beyond 24 months even till retirement of
 42

employee. In many cases the interest of third parties lie in the attached property. Therefore the Judicial
Officers who are dealing with attachment of properties should be cautious while ordering and
continuing the attachments.
 43

Presented by : Smt. N.Saraswathi,

Addl. Senior Civil Judge, Machilipatnam.
INTRODUCTION:

The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgment passed by the court of justice.
Simply “execution” means the process for enforcing or giving effect to the judgment of the
court. Execution is the enforcement of decrees and orders by the process of court, so as to enable the
decree-holder to realize 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.
The legal process of seizing of property to ensure satisfaction of the judgment. A decree may also
be executed on the application of the decree- holder by attachment and sale only sale without attachment of
property. The code recognizes the right of the decree-holder to attach the property of the judgment debtor
in execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and rules
41 to 57 of Order 21 deals with the subject of attachment of property. 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. The code also declares that a private alienation of property
after attachment is void.
Modes of Attachments: Rules 43 to 54 Under order XXI of CPC.

Rule 43 to 54 of Order XXI laid down in the procedure for attachment of different types of
movables and immovable properties.
Rule 43-Attachment of movable property other than agricultural produce, in possession of
judgment – debtor.
Rule 43-A Custody of movable property Rule 44-
Attachment of Agricultural produce
Rule 45-Provisions as to Agricultural produce under attachment
Rule 46-Attachment of debt, Share and other property not in possession of judgment
debtor.
Rule 47-Attachment of share in movables
 44

Rule 48-Attachment of Salary or Allowances of Servant of the Government or Railway

Company or Local Authority.
Rule 49-Attachment of Partnership property Rule 50-Execution of
Decree against firm
Rule 51-Attachment of Negotiable Instruments
Rule 52 –Attachment of property in custody of Court or public officer Rule 53- Attachment of
decrees
Rule 54 –Attachment of immovable property.

Sec.60 of C.P.C deals with:- Property liable to attachment and sale in

execution of Decree :

The following property is liable to attachment and same in execution in decree: The following
property 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, hundies, promissory notes, Government
securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter
mentioned, all other saleable property, moveable or immoveable, belonging 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:
Provided that the following properties shall not be liable to such attachment or sale, namely:—

(a) 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;

(b) 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 of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately
appurtenant thereto and necessary for their
 45

enjoyment) belonging to [an agriculturist or a laborer or a domestic servant] and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government [or of a local authority or of any other
employer, or payable out of any service family pension fund notified in the Official Gazette, by the
Central Government or the State Government in this behalf, and political pension;

(h) the wages of laborers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of the first [one thousand rupees] and two-thirds of the remainder in
execution of any decree other than a decree for maintenance:

Provided that where any part of such portion of the salary as is liable to attachment has been
under attachment, whether continuously or intermittently, for a total period of twenty four months, such
portion shall be exempt from attachment until the expiry of a further period of twelve months, and,
where such attachment has been made in execution of one and the same decree, shall, after the
attachment has continued for a total period of twenty four months, be finally exempt from attachment
in execution of that decree;

(i-a) one-third of the salary in execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950 , or the Army Act, 1950, or the
Navy Act, 1957 applies;

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act
1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment;
 46

(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act,
1968 , for the time being applies, in so far as they are declared by the said Act as not to be liable to
attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

(kc) the interest of lessee of a residential building to which the provisions of law for the time being in
force relating to control of rents and accommodation apply;

(l) any allowance forming part of the emoluments of any servant of the Government] or of any servant of a
railway company or local authority which the appropriate Government may by notification in the Official
Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to any such
servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution
of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land- revenue; any movable property
which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear
of such revenue.

Explanation I.—The moneys payable in relation to the matters mentioned in clauses (g), (h), (i) (ia), (j), (l)
and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the
case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually
payable.]

Explanation II.—In clauses (i) and (ia)] “salary” means the total monthly emoluments, excluding any
allowance declared exempt from attachment
 47

under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.

Explanation-III—In clause (l) “appropriate Government” means—

(i) as respect any person in the service of the Central Government, or any servant of a Railway
Administration or of a cantonment authority or of the port authority of a major port, the Central
Government;

(iii) as respects any other servant of the Government or a servant of any other local authority, the
State Government.

Explanation IV.—For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a
skilled, unskilled or semi skilled labourer.

Explanation V.—For the purposes of this proviso, the expression “agriculturist” means a person who
cultivates land personally and who depends for his livelihood mainly on the income from agricultural land,
whether as owner, tenant, partner, or agricultural labourer.

Explanation VI.—For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land
personally, if he cultivates land—

(a) by his own labour, or

(b) by the labour of any member of his family, or

(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce),
or both.

(1A) Notwithstanding anything contained in any other law for the time being in force, an agreement by
which a person agrees to waive the benefit of any exemption under this section shall be void.

(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials
and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment)
from attachment or sale in execution of decrees for rent of any such house, building, site or land.
 48

Section 46 of C.P.C deals with Precepts:-

Precepts means a command or an order. A precept is an order or direction given by the court
which passed the decree to a court which would be competent to execute the decree to attach any property
belonging to the judgment debtor. The court which passed a decree may, upon an application by the
decree holder, issue a precept to that court within whose jurisdiction the property of the judgment debtor is
lying to attach any property specified in the precept.
Rule 46-A to 46-I of order 21 of C.P.C deals with procedure in guarnishee .
Rule 46-A requires a notice to be issued to a guarnishee before a guarnishee order is passed against
him. If such notice is not issued and opportunity of hearing is not afforded before passing an order, the
order would be null and void. The payment made by the guarnishee into the court pursuant to such notice
shall be treated as a valid discharge to him as against the judgment debtor.

Order XXVIII Rule V of C.P.C deals with:-

Where defendant may be called upon to furnish security for production of property:-

(1) Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant,
with intent to obstruct or delay the execution of any decree that may be passed against him,

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to
furnish security, in such sum as may be specified in the order, to produce and place at the disposal of
the court, when required, the said property or the value of the same, or such portion thereof as may be
sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached
and the estimated value thereof.
 49

(3) The court may also in the order direct the conditional attachment of the whole or any portion of
the property so specified.

(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule,
such attachment shall be void.

In RAJENDRA SINGH VS RAMADAN SINGH

Wherein their lordship held that under subsection (1) of order XXXVIII of C.P.C the court can
order for attachment only after failure of furnishing of security.
Sec.136(1) of C.P.C deals with procedure where persons to be arrested or property to be
attached is outside district

(1) Where an application is made that any person shall be arrested or that any property shall be
attached under any provision of this Code not relating to the execution of decrees, and such person
resides or such property is situate outside the local limits of the jurisdiction of the court to which the
application is made, the court may, in its discretion, issue a warrant of arrest or make an order of
attachment, and send to the District Court within the local limits of whose jurisdiction such person or
property resides or is situate a copy of the warrant or order, together with the probable amount
of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment
to be made by its own officers, or by a court sub- ordinate to itself, and shall inform the court which issued
or made such warrant or order of the arrest or attachment

(3) The court making an arrest under this section shall send the person arrested to the court by
which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former court
why he should not be sent to the latter court, or unless he furnishes sufficient security for his appearance
before the latter court, or for satisfying any decree that may be passed against him by that court, in either
of which cases the court making the arrest shall release him.

(4) Where a person to be arrested or movable property to be attached under this section is
within the local limits of the ordinary original civil
 50

jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay, the copy of
the warrant of arrest or of the order of attachment, and the probable amount of the costs of the arrest
or attachment, shall be sent to the court of small causes of Calcutta, Madras or Bombay, as the case
may be, and that court, on receipt of the copy and amount, shall proceed as if it were the District Court.

Rule 252 of Civil Rules of Practice Attachment movable property when movable property is attached
in execution
When movable property is attached in execution of any civil process, the attaching officer shall
give a copy of the list of attached property with description sufficient for
identification, to the persons from whose possession
of the property is attached, or if he is not present then to any adult male member of the family of
such person, who is present, or if none is present, shall affix it on the outer door of the house of
such person and shall note on the list dispatched or brought to the court which issued the process,
the mode in which the copy of the list has been delivered or affixed. SALE OF THE PROPERTY
A decree may be executed by attachment and sale or sale without attachment of any property. Section
65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and immovable
property.
Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an attachment under
order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property. Officer will be the
representative of the court and will sell the property for execution of decree.

Proclamation of sale: Rule 66-67

It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that
people can participate in auction and sale. Proclamation can be in writing or by customary mode.
 51

Contents of proclamation:-

 Time and place of sale

 Property to be sold

 Revenue, if any, assessed upon the property;

 Encumbrance, if any, to which property is liable;

 Amount to be recovered;

 Details relating to property, such as title deed, length etc.

Time of sale: Rule 68

No sale without the consent in writing of the judgment-debtor can take place before fifteen
days in case of immovable property and before 7 days in case of movable property from the date of
proclamation in the courthouse. A sell can be conducted immediately if the property is of perishable nature.

Adjournment of sale: rule 69

If the judgment-debtor after the issue of proclamation and before sell has paid the amount, or has
partly promised to pay on the given date before completion of public order, if there is any justified reason,
in those circumstances, court has discretionary power to postponed the sell. If it has been postponed for
period of 30 days, fresh proclamation has to be issued and again the process of rule 67, 68 and 69 will
follow.
Sell cannot be postponed where judgment-debtor dies before the date of sell or after the issue of
proclamation, or on the date of auction.

Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the property sold in
execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the property
sold in execution of decree on the mortgage.

Any officer or other person having any duty to perform in connection with the execution sale
cannot either directly or indirectly, acquire or any attempt to acquire any interest in the property sold in
execution.
 52

Rule 78-78 talks about sale of movable property.

Rules 74 and 75 relates to the sale of agricultural produce and growing crops. Rule 76 covers
negotiable instruments and shares. Sale of movable property should be held by public auction. A sale of
movable property will not be said aside on the ground of irregularity in publishing or conducting the
sale (rule 78).
Rule 82-94 talks about sale of immovable property.

Rule 83 enables the executing court to postpone sale to enable the judgment-debtor to raise decretal
dues by private alienation.
Rule 84-85 provide for payment of purchase money by auction-purchaser. Rule 86 talks about cases of
default by auction-purchaser in making requisite payment and resale of property. Rule 89-91 and 93 deals
with setting aside sale and effect thereof. Rules 92-94 provide confirmation of sale and issuance of
sale- certificate. Section 65 declares the effect of sale.

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 realize 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.
 53

Presented by : Sri G.Bhupal Reddy,

Chief Metropolitan Magistrate, Vijayawada.

The word ‘attachment’ has not been defined in the code of civil procedure. The attachment can
be understood as the act or process of taking, apprehending, or seizing property, by virtue of a judicial
order. In other words it can be said that the attachment is an order from a court to hold a debtor's
property to prevent it being sold. However the attachment does not necessarily physical seizure or
physical posession . Some properties are not aminable to have physical seizure or posession. For all
practical purposes the attachments can be understood as control or authority over the property. It is a
prohibitary order directing the person against whom attachment is made, not to indulge into any
transaction inrespect of the attached property until further orders. Attachment is different sale of property.
Even without attachment the decree holder can directly file an application under order 51(b) of CPC for sale
of the property. However in the case of an immovable property there is no sale without an attachment.
When a particular item or thing or property is attached, the Judgement Debtor looses his rights of alienation
over the said item. The control over the attached property rests with the court which makes the order of
attachments.
Sections 60 to 65 and rules 41 to 57 of Order 21 deals with the subject of attachment of
property.
The decree holder shall be capable of assertain the properties of judgement debtor to attach the
property . The decree holder may file an application under order 21 rule 41 CPC for the examination of
judgement debtor about his/her properties. According to order 21 rule 41(1)(C), the court can ask any
person to disclose the assets of judgement debtor. It is only because of this sub rule the courts
usually direct the drawing officers to disclose the salary particulars of concerned judgement debtor.
Under Sub Rule 2 of Rule 41 the court may direct the judgement debtor to file an affidavit mentioning the
particulars of his/her properties. If the Judgement
 54

Debtors disobeys such order he may be detained in civil prison for three months under this rule (Sub Rule
2 of Rule 41 of Order 21
CPC). The allianation of attached property in violation of attachment is void under section 64 CPC
Section 60 of the code of civil procedure 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.
Properties which can be be attached :-

(1) 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, all other saleable property, movable or immovable, belonging to the
judgment debtor, or over which, or the profits of which, he has a disposing power. Properties shall
not be attached:

(a) the necessary wearing apparel, cooking vessels, beds and bedding and such personal
ornaments as, in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of
husbandry and such cattle and seed grain.

(c) house belonging to an agriculturist or a labourer or a domestic servant and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners of the Government or of a local authority etc ;
(h) the wages of labourers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in
execution of any decree other than a decree for maintenance:

(ia) one-third of the salary in execution of any decree for maintenance;

(j) the pay and allowances of Air Force, Army and Navy people;
 55

(k) all compulsory deposits and other sums in under the Provident Funds

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;
(kc) the interest of a lessee of a residential building under Rent Control Act;
(I) any allowance forming part of the emoluments of any servant of the Government or of any
servant of a railway company or local authority which the appropriate Government may, by notification in
the Official Gazette, declare to be exempt from attachment, and any subsistence grant or allowance made to
any such servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or

interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree; and

(p) where the judgment debtor is a person liable for the payment of land revenue, any movable
property which, under any law for the time being applicable to him, is exempt from sale for the recovery of
an arrear of such revenue.
The attachment of salary is an important one since the decree holders prefer the salary attachment
to any other attachment in these days. As seen from section 60 the salary includes basic pay and allowance
which are not exempted from attachment. In case of execution of decree for maintainance except 1/3
salary the remaining portion of salary is liable for attachment and the same can be continued till
further orders may be upto retirement of the employee / JDR. But in the case of other decree the
attachment of salary has several limitations. The Ist one thousand and two thirds of remainder of the
salary is excluded from attachment and the attachment will be for 24 monthly deductions (instalments)
either continuously or with certain gaps. The period of attachment should not continue beyond deductions
24 months in the same decree. Even in respect of the different decree there should be a gap of 12
months after the 24 montly deductions.
 56

These exemptions cannot be waived even by the JDR. Theese exemptions are based on humanitarian
grounds (Section 60-1A CPC).
As per section 61 the concern government is authorised to exempt a part of agricultural produce
from attachment.
Section 62 CPC says : No person executing any process under this Code directing or
authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.
Section 65 CPC reads : Where immovable property is sold in execution of a decree and such sale
has become absolute, the property shall be deemed to have vested in the purchaser from the time when
the property is sold and not from the time when the sale becomes absolute.
Section 46 deals with receipt. Under this section the court which passed the decree may issue a
precept to any other court which will be competent to execute such decree, to attach any property
belonging to the JDR. The duration of receipt is two months. This is to facilatate the decree holder to get
the decree transferred to the court which can execute the decree.
The attachment of movable property, other than agriculture produce, which in pocession of JDR
shall be made by way of actual seizure (Rule 43 of Order 21). The attaching officer shall keep the
property in his own custody or in the custody of one of his subordinates. Where movable property is
live-stock, agricultural implements the attaching officer live such properties in the village or place
where it has been attached, in the custody of a responsible person who usually known as custodian and
the act is known as safe custody in common parlance. (Rule 43-A of Order 21 CPC).
The attachment of agricultural produce shall be made by affixing a copy of warrant at at such
property and another copy of warrant at the outer door or other conspicuous part of the house of JDR
(Rule 44). Undr rule 45 the court can make such arrangement for the custody and management of such
agricultural produce.
Under Rule 46 of Order 21 the court can attach a debt, share and other property which is not on
possession of JDR bu inposession of sumother person (Garnishee). Such attachment shall be made by
a return
 57

order of a prohibition. Rule 46-A to 46-I deal with property in the custody of third person. These rules are
popularly known as garnishee proceedings.
A share in a movable property in which the JDR has share or intrest can also be attached
undr rule 47. Rule 48 or order 21 deals with attachment of salary or allowances of Government
Employee while Rule 48-A deals with salary or allowances of private employee. Rule 49 deals with
attachment of partnership property. Rule 50 deals with decree against a firm against a firm. Rule 51
deals about attachment of negotiable Instrument. It says the attachment can be made by actual seizure.
Rule 52 deals with the attachment of property in the custody of a court or public officer. It says the
attachment shall be made by a notice to such court . Rule 53 or Order 21 deals with attachment of
decree .
Rule 54 deals with attachment immovable properties. This rule says the attachment of
immovable property shall be made by way of an order of prohibition. Sub Rule 1-A provides notice to
the JDR to attend the court on the date tobe fixed for settling the terms of proclamation of sale. The
proclamation shall be made by way of beat of drum or other customary mode and a copy of
proclamation shall be affixed at the conspicuous places of court revenue office, place of land and
grampanchayat etc.,

55. Removal of attachment after satisfaction of decree.- Where—

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any
property are paid into court, or
(b) satisfaction of the decree is otherwise made through the court or certified to the court, or
(C) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of
immovable property, the withdrawal shall, if the judgment debtor so desires, be proclaimed at his
expenses, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding
rule.
Rule 56 deals with payment of coin or currency note to the party to the entitled.
Rule 57 of Order 21 says about the determination of
attachment.- (1) Where any property has been attached in execution of a
 58

decree and the court, for any reason, passes an Order dismissing the application for the execution of the
decree, the court shall direct whether the attachment shall continue or cease and shall also indicate the
period up to which such attachment shall continue or the date on which such attachment shall cease.

(2) If the court omits to give such direction, the attachment shall be deemed to have ceased.

Therefore if the Execution Petition is dismissed for any reason , the attachment ceases
automatically though no specific order of raising of attachment is made.
Conclusion: In execution proceedings attachment place a significant role. Attachment puts a
restriction on the rights of JDR and prolonged attachment will naturally caused severe heardship to
him. Knowingly or un knowningly several mistakes are being crept in the process of attachment of
properties and things. We all very well know that some of the drawing officers continue to send
attached portion of salary beyond 24 months even till retirement of employee. In many cases the
intrest of third parties lie in the attached property. Therefore the Judicial Officers who are dealing with
attachment of properties should be cautious while ordering and continuing the attachments.
 59

Presented by : Smt. M.Meena Devi,

Prl. Senior Civil Judge, Vijayawada.

1. 'Execution' is dealt with in Sections 36 to 75 and Sections 144, 146 and 148 of Civil
Procedure Code. Order XXI of Civil Procedure Code deals exclusively with 'Execution'. Chapter XVI of
Civil Rules of Practice consisting of Rules 205 to 285 deals with execution. Articles 125 to 129 and
134 to 137 of Limitation Act deal with 'limitation in respect of execution proceedings'. I have been
ordained by the Hon’ble District Judge to submit a paper relating to the topic “Attachments”. Since
the topic of 'Jurisdiction of the court' while filing the execution petitions, claim petitions and period of
limitation for filing applications during execution are assigned to other Officers, only the provisions
relevant to attachments during the execution are dealt with hereunder.

2. Sections 60 to 64, Order XXI Rules 41 to 57 of Civil Procedure Code deal with 'attachment of
property either movable or immovable during execution'. Apart from the said provisions order XXI
Rule 31 and 32 also deal with 'attachment of property'. Order XXI Rule 31 deals with the case of execution
of a decree for a specific movable property. It provides for seizure and delivery if practicable or otherwise
by attachment of judgment-debtor's property or by his detention in civil prison. If attachment remains
in force for three months without satisfaction of the decree, then the said property can be sold on the
application by the decree-holder and he can be paid the value of such movable property if fixed, or
compensation for non-delivery of the movable property ordered by decree in case of non-fixation of its
value in the decree. If the judgment-debtor has satisfied the decree or if no application has been
made by the decree-holder for sale of the property at the end of three months from the date of
attachment, the attachment shall cease.

3. Order XXI, Rule 32 provides for execution of decrees in cases of restitution of conjugal rights, for
injunction and for specific performance. As far as these three types of decrees are concerned, if
after notice to the
 60

judgment-debtor, the decree is not satisfied, his properties can be attached for a period of six months
to compel him to satisfy the decree and if the judgment-debtor does not comply the decree even after the
said period, the attached property can be sold if so required by the decree-holder and he can be
compensated out of the sale proceeds. In so far as the decrees for specific performance of contract
and decrees for injunction are concerned, the judgment-debtor can also be arrested and committed to
civil prison for compelling him to perform the decree. But that is not open in case of a decree for
restitution of conjugal rights. Order XXI Rule 42 provides for attachment in execution of a decree for an
unascertained amount, which is an exception to the general rule. It provides for attachment in cases
where future right, mesne profits or damages for use and occupation or such recurring amounts are to be
ascertained as per the preliminary decree.

4. Now we come to the attachment of movable properties in execution of a decree. Order XXI, Rule
43 provides for attachment of movable properties other than agriculture produce. Rules 44 and 45 provide
for attachment of growing crop and agriculture produce. As far as Order XXI, Rule 43 is concerned, the
attachment of movable property is by actual seizure. After seizure the custody of the property is to be
with the attaching officer. In case seized property is subject to speedy and natural decay, or if the
expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once. As
per order XXI Rule 43-A, if the attached property consists of live stock, agricultural implements or others
which cannot be conveniently removed, then at the instance of judgment-debtor, decree-holder or any
other person claiming to be interested therein, they can be left in their custody after taking proper security
for producing them whenever required by the court. Another mode of execution is by attachment of
debt, share or other property not in possession of judgment- debtor, wherein a third-party called as
garnishee is liable to pay or deliver any property to the judgment-debtor. The attachment in such cases is
effected by issue of a prohibitory order as provided under Order XXI, Rule 46 of Civil Procedure
Code and the procedure is further dealt with under
 61

Rules 46-A to 46-I. If the Garnishee of the judgment-debtor fails to execute the order of attachment by the
court, the decree-holder may file an application under Rule 46-B and seek to proceed against the
garnishee as if it were a decree passed against him.

5. Now let us consider realization of the decree amount by attachment of salary of a judgment-debtor.
Order XXI Rule 48 provides for attachment of salary of a government servant, including servants of railways,
local authorities etc., and Order XXI Rule 48-A provides for attachment of salaries of private employees.
Prior to 1976 the attachment of salaries of private employees was not allowed. The attachment of salary is
subject to certain restrictions imposed as per Section 60 of Civil Procedure Code. The said section
postulates that whenever the salary of the employee is ordered to be attached, salary to the extent of first
one thousand rupees and two-thirds of the remainder is exempted in execution of any decree other than a
decree for maintenance. In case of a decree for maintenance only one-third of the salary is exempted
from attachment. Further, in case of attachment in pursuance of a single decree it can be made only for a
period of twenty four months whether continuously or intermittently and thereafter the salary cannot be
attached in execution of the same decree even if any balance amount is due to the decree-holder. In
addition to that, it is also to be taken note of that if the salary has been attached continuously for a
period of twenty four months, such portion shall be exempted from attachment until the expiry of a
further period of twelve months.

6. Another type of properties of which attachment is sought for are the partnership properties. The
partnership properties may be proceeded against in two types of cases. One is when the decree is against
the firm, or the partners in that capacity or in execution of a decree against partners in their individual
capacity. In case a court is executing a decree passed against an individual in his individual capacity,
against the properties of a partnership firm in which he is a partner, no part of the property of the
partnership can be attached as such, as seen from Order XXI, Rule 49 of Civil Procedure Code. The
court can only attach undivided share of the
 62

particular partner in the partnership firm and it can only ask the other partners to remit the amount of
profits or other amounts due to him or may fall to his share annually. The court is also entitled to dispose
of the undivided share in the court auction and other partners will have a preferential right to purchase
the same. But, in case of execution of a decree passed against the firm or partners in their capacity
as partners of the firm, the court can execute the decree against any property of the firm as in the
case of execution against the individual as can be seen from Order XXI Rule 50 of Civil Procedure Code.

7. Order XXI Rule 51 prescribes the procedure for attachment of a negotiable instrument.
Attachment of a negotiable instrument can only be by actual seizure and not by any other mode, as
negotiable instruments have got special position in view of Negotiable Instruments Act, 1882. As far as the
property in the custody of court of a public officer is concerned, the procedure is prescribed under Order
XXI Rule 52. In such a case the attachment shall be made by a notice to such court or officer
requesting that any amount payable thereon may be held subject to further orders of the court. As
per Order XXI Rule 53, a decree-holder can seek attachment of a decree obtained by the judgment-
debtor in another case. If it is a case of money decree or a decree for sale in enforcement of a
mortgage or a charge, the procedure to be followed is laid down under sub-rule 1 and if it is for any
other decree, procedure is laid down in sub-rule 4. Notice is to be given to the judgment-debtor under the
attached decree and any payment made by such judgment-debtor thereafter to the decree-holder of the
attached decree shall not be recognized by any court so long as the attachment remains in force.

8. The attachment of immovable property is provided under Order XXI Rule 54. There is no need
for attachment to be made in execution of mortgage decrees or decrees in which charge has been
created over the property. Attachment of property is also not required where the property has been
attached before judgment under Order XXXVIII Rule 5. The attachment is to be effected by not only
prohibiting the alienation and
 63

proclaiming the same by beat of tom-tom at or near the place of attachment, but also by affixing the said
proclamation of attachment at a conspicuous part of the attached property and notice boards of the
particular panchayat, municipality and collector’s office and also in a conspicuous part of the court
house. The attachment gets terminated automatically when the decree is satisfied or decree is set-aside.
When an execution application is dismissed for any reason after attachment, the court shall make an order
regarding continuation or seizing of the attachment. If no direction is given, the attachment shall be
deemed to have ceased as per Order XXI Rule 57 Civil Procedure Code.
 64

Presented by: Sri Shaik Ibrahim Sharief,

I Addl. Junior Civil Judge, Machilipatnam.

Generally the attachments are two types. One is an attachment before judgment and another
is attachment after judgment. Order 38 of
C.P.C deals with attachment before judgment and Order 21 of C.P.C deals with attachment after
judgment along with other modes of execution of a decree.

Order 38 of C.P.C place an important role in civil courts, because whenever a suit based on
money transaction is filed for recovery of amount, the plaintiff will come up with a petition under Order
38, Rule 5 of CPC for attachment before judgment. The very object of the order under Order 38 Rule 5
is to get security for unsecured debt due to a bonafide creditor by a debtor.

In order to grant the relief under Order 38, Rule 5 in Premraj Mundra Vs. Md. Manech Gazi
reported in AIR 1951 Cal 156, the following guiding principles were deduced:-

(1) That an order under O.38, R.5 and 6, can only be issued, if circumstances exist as are stated
therein.

(2) Whether such circumstances exist is a question of fact that must be proved to the satisfaction of
the Court.

(3) That the Court would not be justified in issuing an order for attachment before judgment, or for
security, merely because it thinks that no harm would be done thereby or that the defendants would not
be prejudiced.

(4) That the affidavits in support of the contentions of the applicant, must not be vague, and must be
properly verified. Where it is affirmed true to knowledge or information or belief, it must be stated as to
which portion is true to knowledge, the source of information should be disclosed, and the grounds for
belief should be stated.
 65

(5) That a mere allegation that the deft. was selling off and his properties is not sufficient. Particulars
must be stated.

(6) There is no rule that transactions before suit cannot be taken into consideration, but the object of
attachment before judgment must be to prevent future transfer or alienation.

(7) Where only a small portion of the property belonging to the deft. is being disposed of, no inference
can be drawn in the absence of other circumstances that the alienation is necessarily to defraud or delay
the plaintiff’s claim.

(8) That the mere fact of transfer is not enough, since nobody can be prevented from dealing with his
properties simply because a suit has been filed. There must be additional circumstances to show that
the transfer is with an intention to delay or defeat the plaintiff's claim. It is open to the Court to look
to the conduct of the parties immediately before suit, and to examine the surrounding circumstances, and to
draw an inference as to whether the deft. is about to dispose of the property, and if so, with what intention.
The Court is entitled to consider the nature of the claim and the defence put forward.

(9) The fact that the deft. is in insolvent circumstances or in acute financial embarrassment, is a
relevant circumstance, but not by itself sufficient.

(10) That in the case of running businesses, the strictest caution is necessary and the mere fact that a
business has been closed, or that its turnover has diminished, is not enough.

(11) Where however the deft. Starts disposing of his properties one by one, immediately upon getting a
notice of the plaintiff’s claim, and/or where he had transferred the major portion of his properties shortly
prior to the institution of the suit and was in an embarrassed financial condition, these were grounds from
which an inference could be legitimately drawn that the object of the deft. was to delay and defeat the
plaintiffs' Claim.
 66

(12) Mere removal of properties outside jurisdiction, is not enough, but where the deft. with notice of the
plaintiffs claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court,
and without any other satisfactory reason, an adverse inference may be drawn against the defendant.
Where the removal is to a foreign country, the inference is greatly strengthened.

(13) The defendant in a suit is under no liability to take any special care in administering his affairs,
simply because there is a claim pending against him. Mere neglect, or suffering execution by other
creditors, is not a sufficient reason for an order under O.38 of the Code.

(14) The sale of properties at a gross under value, or benami transfers, are always good indications of an
intention to defeat the plaintiffs claim. The Court must however be very cautious about the evidence
on these points and not rely on vague allegations.”
When an attachment before judgment was ordered, it will give assurance to the plaintiff that he
will reap the fruits of the decree that may be passed against the defendant. An order of attachment
made before judgment in a suit shall not get automatically revive as per Sub-Rule 2 of Order 38 of Rule
11-a of C.P.C. Once the property is attached before judgment, there is no need to attach the same again
in an execution of a decree.
Further, an application can be made at any stage of the suit and it may be entertained so
long as the suit is pending. Our Hon’ble High Court, in a decision rendered in Mamidala Suresh Babu
and Others Vs. Tirumalasetty Krishna Murthy & Others reported in 2006 (3) ALD 605, wherein it was
held that-
“The sign-Qua-non for an order of attachment before Judgment or for an order
demanding security before judgment is that the defendant is disposing of or about to
dispose of his property with the dishonest intention of defeating or delaying the possible
decree in the suit. The merits of the claims of the contending parties are merely ancillary
factors forconsideration by the court in arriving at a conclusion with regard to the
essential requirements of Order 38 Rule 5 C.P.C.”
 67

Order 38 Rule 6 of C.P.C empowers the court to order attachment of property specified
sufficient to satisfy any decree in case the defendant fails to show-cause why he should not furnish
security or fails to furnish the security required. Rule 7 indicates that the attachment shall be made in
the manner provided as in the procedure or execution. Rule 8 requires any claim leveled regarding the
attached property in execution of the decree to be adjudicated as gets done in the procedure laid down
for execution of the decrees. Rule 9 reads to follow how attachment order can be withdrawn when the
defendant furnishes the required security together with costs of attachment and such attachment order
to be withdrawn when the suit is dismissed. Rule 10 envisages that the order of attachment before
judgment shall not effect the rights of persons existing prior to that attachment order even though they
are not parties to the suit and added to it if an earlier decree holder is there he can proceed in execution
of his decree by applying for the same attached property. Rule 11 clarifies that any property attached
before judgment need not be attached once more during the process of execution. Rule 11-A clarifies
how the attachment continues even after the judgment by virtue of Rule 11. Sub-rule 2 of Rule 11-A is
important for noting that if suit is dismissed for default even though there is an attachment order
before judgment such order does not get revived automatically even if the suit is restored. Rule 12
prohibits any such attachment order before judgment against agricultural produce in the possession of
an agriculturist. Rule 13 says a small cause court cannot attach immovable property under order 38
C.P.C.

Before, the further provisions of Order 38 are considered, it would be profitable to note that in
the case of Padam Sen and another Vs. State of Uttar Pradesh AIR 1961 SC 218 (220) the Apex
Court held that –
“The object of the provisions for arrest and attachment before judgment is to prevent any
attempt on the part of the defendant to defeat the realization of the decree that may be
passed against him”.
 68

The Apex Court held that before the Court orders an attachment before judgment, it must have
reason to believe, on adequate materials that, unless the jurisdiction is exercised, there is a real danger that
the defendant will remove himself or his property from the ambit of the powers of the Court. {(2004)
3 Supreme 637 (SC)}
In the case of Sardar Govindrao Mahadik & Another vs Devi Sahai & Others reported in
AIR 1982 SC 989 (1006, 1007), the Court held that
“An order levying attachment before judgment is a sort of a guarantee against decree becoming
infructuous for want of property available from which the plaintiff can satisfy the decree. But if in
appeal the decree is set aside, the attachment, of necessity must fail”.

In the case of Surender Singh Bajaj Vrs Kitty Steel Limited AIR 2003 AP 13 (16), the
hon'ble High Court held that –

“wherever the petitioner seeks for attachment, he has to satisfy by affidavit or

otherwise, that the defendant is making attempts to leave jurisdiction of the Court
or take away the amount with intention to defeat and delay the execution of decree.”

In the case of AnanthulaChandrakala vs Karim Gulam Hussain Lalani AIR 2006 AP 195, the
Court held –
“The object of invoking Order XXXVIII Rule 5 of the Code is no doubt to safeguard the
interest of the plaintiff if the Court is satisfied that ultimately even if a decree is going to
be obtained by the plaintiff he may not able to realise the fruits of the decree. It is
also true that the conditions specified in Order XXXVIII Rule 5 may
have to be satisfied before making such an order.”

So, where the Court is satisfied (by the affidavit of the plaintiff or otherwise) that the defendant,
with intent to obstruct or delay the execution of any decree that may be passed against him, is about to
dispose of his property or any part thereof or remove it from it local limits, the Court may direct the
defendant either to furnish security in such sum as may be specified in the order or to place at the
disposal of the Court the said property or the vale thereof, or such portion thereof as may be sufficient to
satisfy the decree that may be passed against him, or to appear and show cause why he should not
furnish security. Issuance of notice is mandatory
 69

before an order of attachment is made. The defendant can comply the directions by furnishing necessary
security to the bailiff.
In the case of Avinash Constructions, Secunderabad v. P.Usha Rao 2004 (4) ALD 698 (700) it
was held that –
“when the Court passes an order of attachment without recording its satisfaction as
required under Order 38 Rule 5 of CPC and when the Court had not even sought for a
security, the order is not valid under law.”
Under Order 38 Rule 5 (3) of CPC, the Court may also order conditional attachment of the
property. But, where the defendant shows such cause or furnishes the required security, and the property
has been conditionally attached, the Court will order the attachment to be withdrawn. If he fails to show
such cause, the Court may order that the property be attached, or if it has been already attached, it may
confirm the attachment.
In the case of Mamidala Suresh Babu Vs. Tirumalaseeti Krishna Murthy 2006 (3) ALT 250, the
Hon'ble High Court held that –
“The Court can make an order of conditional attachment before judgment under Order 38
Rule 5 (3) of CPC simultaneously with notice to the defendant to furnish security.”

In the case of Deepika Constructions, Engineers and Civil Contractors Vs. Garikipati Radha
Krishnaiah 2006 (3) ALT 308, the Hon'ble High Court held that –
“The Court's order conditional attachment of property before judgment under Order 38 Rule
5 (3) of CPC even without a notice to the defendant is not illegal. But, when we see the
provisions of Order 38 of CPC, there is bar attachment without notice under Order 38 Rule 4
of CPC.”

Order 38 Rule 7 of CPC states that the 'attachment shall be made in the manner provided for
the attachment of property in execution of a decree. Order 38 Rule 11 of CPC provides that where property
stood attached before Judgment, it is not necessary to re-attach the property in execution of the decree.
An attachment under Order 38 of CPC shall be subject to Section 60 of CPC. An agreement
contrary to the proviso of Sec.60 of CPC is void under Sec.60 (1-A) of CPC.
 70

Order 38 Rule 10 of the CPC clarifies that the attachment before judgment shall not affect the rights,
existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree
against the defendant from applying for sale of the property under attachment in execution of such decree.
Order 38 Rule 8 states that where any claim is preferred to the property attached before judgment such
claim shall be adjudicated upon in the manner herein before provided for the adjudication of claims to
property attached in execution of a decree for the payment of money. So to say, such claim petition
should be tried like a suit. Further, the Law provides that even after passing a decree, the Court can take
up the adjudication of claim petition.
Sec.64 of CPC prohibits private alienation of the property after it was attached before judgment or
in execution of a decree. In the Case of HamdaAmmal vs AvadiappaPathar And 3 Others (1990) 4 JT
(SC) 391 (395), the Apex Court had clarified that if sale deed executed before the property is attached
though it is registered after attachment, then the attachment would render the sale deed void. However
Sec.64 (2) safeguards that the private transactions made in respect of property under attachment before
judgment. It is clarified under Order 38 Rule 10 of CPC.
Order 38 Rule 11 (2) of CPC categorically states that whenever a suit is dismissed for default,
the attachment made before judgment would not get revived on restoration of suit. This provision is very
important for consideration as it is normally understood that on restoration of suit, the interlocutory
orders made before the dismissal of the suit would get restored.
 71

Presented by : Sri P.Tirumala Rao,

III Addl. Senior Civil Judge,
Vijayawada.
** Modes of Execution (Sec.51).

** Attachment of salary, etc (Garnishee Proceedings).

** Exemptions from Attachment.

** Attachment of movable and immovable properties.

** Determination, Removal and Revival of Attachment MODES OF

EXECUTION :

Sec.51 of CPC provides the following modes of execution of decrees subject to such conditions
and limitations as may be prescribed.

(1) By delivery of any property specifically decreed ;

(2) By attachment and sale or by the sale without attachment of any property ;

(3) By arrest and detention in prison for such period not exceeding the period specified in Sec.58,
where arrest and detention is permissible under that section;

(4) In such other manner as the nature of the relief granted may require.

Decree Holder is dominus litus

As per the decision between [V. Dharmavenamma – Vs – C. Subrahmanyam Mandadi], it is for

the Decree Holder to choose his own choice of mode of execution among those available to him. Either the
Judgment Debtor or the Court cannot insist upon the Decree Holder to choose a particular mode of
execution.
In an EP for arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the
Judgment Debtor has sufficient means to satisfy the decree, the Court cannot refuse to order
arrest, on the ground that there is alternative remedy of attachment available to the Decree
Holder for realization of decretal amount [Gudivada Munemma – Vs – Jawardhal] Precept (Sec.46 of
CPC)
Before going to the topic Attachments, let we go through about the Precept. The object of Section
46 is to enable the decree-holder to obtain an
 72

interim attachment of any property of the Judgment-debtor situated within the jurisdiction of another
Court and when he apprehended that the Judgment-debtor would deprive him to get the fruits of the
decree. The Court who passed the decree will issue a Precept to any other Court which is competent to
execute such decree, to attach any property belongs to the Judgment Debtor and specify the same in the
Precept.
Form No.2 of Appendix E of CPC prescribes the Form of Precept.

Attachment of SALARY, ETC. (GARNISHEE ORDERS) :

Order XXI Rule 46 to 46-I, Rule 48, 48A and 52 of CPC deal with Garnishee Orders.
Order XXI Rule 46 – Attachment of debt, shares and other property not in possession of Judgment
Debtor
This rule deals with Garnishee Proceedings. These apply when money of the Judgment-debtor is in
the hands of third parties. Order attaching the debt in the hands of debtor is known as Garnishee Order.
The prescribed form used for issance of prohibitory order under Rule 46 is Form No.18 of Appendix-E of
CPC.

Attachment of money

Decree-holder can proceed against garnsihee only if the Judgment- debtor has the present right to
recover money from garnishee. Until and unless the bills are drawn and paid, the same cannot be treated as
the property of Judgment debtor and hence, not attachable [Hyderabad Co-operative
Commercial Corporation Ltd – Vs – Syed Mohiuddin Khardri].
Attachment of Fixed Deposit Receipt in Bank

Banker's lien would not by itself be a bar for attachment of Fixed Deposit in execution
proceedings against the customer. The banker in such a case, is a garnishee, when attachment notice
is served, has to go before the Court and obtain suitable directions for safeguarding its interest.
[Syndicate Bank – Vs – Vijay Kumar]
In Radhe Shyam Gupta – Vs – Punjab National Bank Ltd and another case, the Hon'ble
Supreme Court held that Pensionary benefits and
 73

gratuity received in cash and converted into Fixed Deposit Receipts, such FDRs cannot be attached.
Procedure under Rule 46 to be followed for attachment before
Judmgent also

In K.Chandrasekharam – Vs – Vijay Bhargavi Chit Fund Pvt.Ltd, it was held that the procedure
and modalities of attachment for recovery of decretal amount applies mutatis mutandis for attachment
before judgment as well. It is stated that the rules contained in Order 38 do not lay down any
particular method of attachment before Judgment. Evidently the same procedure under Rule 46 has to be
followed.
Before deal with Garnishee Proceedings, let us go through the procedure for Attachment of Salary
or allowance of a Government as well as Private Employees.
Attachment of salary or allowance of a Government Employee

Order XXI Rule 48 deals with attachment of Salary or allowances of Governnment Servants or
Railway Company or local authority or Government or Corporation established by the Government and it
is an exception to Rule 46. This rule is subject to the provisions of Sec.60 of CPC. The prescribed form used
for issuance of order Under Order XXI Rule 48 is Form No.19 of Appendix-E of CPC.
Section 39 CPC has no application to the attachments under Rule 48 of Order 21 CPC [Salem
Advocates Bar Association – Vs – Union of India]. Attachment of salary or allowances of private
employees
Order XXI Rule 48-A of CPC deals with the attachment of Salary or allowances of a Private
Employee. To exercise the powers under Order XXI Rule 48A, it is mandatory that the disbursing officer of
the Judgment Debtor shall have to be within the local limits of its jurisdiction [Nanduri Vijaya Bhaskar –
Vs – Sathyamsetty Veera Venkata Apparao]
In Adithya Electronics, Hyderabad – Vs – AS Impex Ltd., New Delhi, the Hon'ble High Court
took the view that since the Judgment Debtor and Garnishee are outside the jurisdiction of the executing
Court, the attachment cannot be granted.
 74

In Shri Ram Chits Pvt. Ltd., - Vs – V. Govindaswamy, the Hon'ble High Court of AP
considered the following questions

(a) whether simultaneous execution is maintainable and the ground for the dismissal
recorded by the Court below are not sustainable ; and

(b) whether the Court has no jurisdiction;

It was held that so far as the attachment of salary is concerned, Order 21 Rule 48 empowers the
Court to attach the salary and allowances of the Government servant, whether the J.Dr or the disbursing
officers are or are not within the jurisdiction of executing Court and the only limitation is that it should
be done subject to the provisions of Sec.60 of CPC.
Choice of Decree Holder in a joint decree

It is the opinion of the Court that the Decree holder has a right to proceed against any of the
Judgment debtors including guarantor in the first instance in view of Sec.128 of Contract Act and that
liability of surety is co-extensive with that of principal debtor unless it is otherwise provided by contract.
In case, the decree is a joint decree, it does not place any fetter on the right of the Decree holder to go on
against any of the judgment debtors of his choice for recovery of amount due [MG Brothers Finance Ltd
– Vs – J.Badrinath]

Attachment of Salary is only once for a decree

In Shaik Noorjahan – Vs – M. Rajeswari, it was held that when any part of attachment portion of
salary of Judgment Debtor was under attachment in execution of decree for a period of (24) months it is
exempted from further attachment in execution of same decree even if there is a gap of
(12) months after completion of (24) months of attachment, in view of Proviso to Clause (i) of Sec.60(1) of
CPC.
GARNISHEE PROCEEDINGS :
Order XXI Rule 46-A CPC deals with notice to Garnishee. There must be a creditor and debtor
relation between judgment-debtor and garnishee to enable the Court to pass an order Under Order XXI
Rule 46-A of CPC.
 75

Order XXI Rule 46-B Says that if the garnishee did not pay the amount in pursuance of
notice and does not appear and show cause in answer to the notice, the Court may order the garnishee
to comply with the terms of such notice; and on such order execution may issue as though such order
were a decree against him.
Trial of Disputed Questions

Order XXI Rule 46-C says that it is open to the garnishee to raise objections immediately after
receiving the order to attachment or at least while making the deposit. Failure to raise objection at
appropriate time, bars the garnishee to raise the objections at the time of issuance of cheque to the
decree-holder [Kuchimanchi Nagamani – Vs – Mantri Prasada Agnihotrudu].
Where the movable property was not in possession of Judgment- debtor but in custody of Court, it
could not be attached by virtue of exclusionary caluse of Order XXI Rule 46-C of CPC [Surender Singh
Balaji – Vs – Kitty Steels Ltd.]
Order XXI Rule 46-D says that if the debt belongs to some third person or that any
third person has a lien or charge on or other interest in such debt, the Court may order such third
person to appear and state the nature and particulars of his claim, if any, to such debt and prove the
same. Order XXI Rule 46-E says that after hearing such third person or persons referred to in 46-
D, who may subsequently be ordered to appear, or where such third or other person or persons do not
appear when so ordered, the Court may make such order or orders with respect to the lien, charge or
interest as the case may be, of such third or other person or persons as the
Court deems fit and proper.

Payment by Garnishee is valid discharge

According to Order XXI Rule 46-F, payment made by the garnishee on notice under Rule 46A or
under any such order is valid discharge as against the J.Dr and any other person ordered to appear for
the amount paid or levied, although the decree in execution of which the application under Rule 46A
was made, or the order passed in the proceedings on such application may be set aside or reversed.
 76

Contempt shall not be initiated against Garnishee

If a Garnishee who is directed to pay any sum of money does not pay the amount, the remedy is
to levy execution and not in an action for contempt or disobedience or breach under Order 39 Rule 2A.
[Food Corporation of India – Vs – Sukh Deo Prasad]
Exemption from Attachment

The proviso to Section 60 CPC gives the items which are exempted from Attachment. The
following are the exemptions.
In case of employees Arrears
of Salary
In [M.Prabhudas – Vs – Usirikayala Venkata Ramana], it was held that it hardly makes any
difference in the context of extending the benefit under Section 60(1)(i) whether it is salary from month to
month or it is the amount accumulated as arrears of salary, the prohibition contained in the provision that
section would operate without any modification.

Gratuity, etc., exempt till reach the J.Dr

In [Gudapati Hanumaiah – Vs – Y. Lakshminarasamma], the Hon'ble High Court of AP was

pleased to held that the exemption from attachment of death benefits payable to deceased employee in the
form of gratuity, provident fund, insurance and other compulsory deposits are exempted from attachment
until they are actually received by the legal representatives of the deceased employee.
In [Bandi China Ramalinga Reddy – vs – Nalluri Srinivasulu], it was held that so long as pension,
gratuity etc., not received by beneficiary only they are exempted from attachment in view of Sec.60(1)(g) of
CPC. When once they reach the hands of employee, the exemption would cease to operate.

HRA & DA – not exempted

The Division Bench of our Hon'ble High Court held in K.Venkateshwarlu – Vs – D. Ranga Reddy,
that House Rent Allowance and Dearness Allowance which are not exempted by the State of Andhra
Pradesh, would not form part of “salary” and therefore liable for attachment subject to the restrictions
contained in clause (i) of Section 60 CPC.
 77

Insurance amount – exempted

In Pulugu Karunakar Reddy – Vs – Shreya Financiers and Hire Purchase, it was held that
amounts payable under insurance policy on the life of the decreased are exempt from attachment under
Sec.60(1)(kb) of CPC for any amounts due by insured.
In Bomminayana Nirmala – Vs – Rachapathu Krishna Murthy, it was held that if a suit is
filed against the successors of policy holder, the policy amount is exempted. The fact that attachment
before judgment became final does not change the situation or the order of the Court attaching LIC
amount operates as Res Judicata.
Encashment of surrender leave – not exempted

In Balasa Rama Rao – Vs – General Manager, District Co-operative Central Bank Ltd.,
Srikakulam, it was held that – so far as encashment of leave is concerned, since no specific exemption is
provided under the proviso to Sec.60 CPC, the same can be a subject matter of attachment.
Exemption can be claimed at the time of sale also

In Padarthi Sambasiva Rao – Vs – Guduru Koteshwara Rao, it was held that the exemption
under Sec.60 of CPC can be claimed at the time of sale, it is obvious, that the Judgment Debtor who did not
raise the claim for exemption of his house from attachment, can always has the liberty of taking that
plea at the time of sale.
Proviso to Sec.60 is applicable to Order 38 Rule 5 also

In Bachala Narapa Reddy – Vs – Kasunnuru Bala Obaiah, it was held that the protection
from attachment given under Sec.60 is available equally to the attachment before judgment also.

Attachment of property in custody of Court or Public Officer

Order XXI Rule 52 deals with the attachment by one Court or property in the custody of another
Court or of a public officer. Form No.21 of Appendix-E is prescribed for issuance of prohibitory order
under this rule.

Procedure of Attachment (Issuance of notice)

This rule requires that where the property is in custody of any Court or Public Officer,
attachment shall be made after a notice to such Court or Officer. The prescribed form is Form
No.21 of Appedix-E of CPC. But
 78

absence of such notice would not render the sale void ab initio [Kanhaiyalal – Vs – D.R. Banaji]
ATTACHMENT OF PROPERTY (MOVABLE AND IMMOVABLE) :
Sections 60 to 64, Order XXI Rules 41 to 54 of CPC and Rules 242 to 259 of Civil Rules of
Practice deal with Attachment of Property.
Order XXI Rule 41 of CPC stipulates to call for an affidavit from the Judgment debtor with regard
to his assets. This rule is applicable to a case of unascertained mesne profits and also to a case of
unascertained damages. The object of this rule is to get information as to the assets of Judgment- debtor for
the purpose of execution of decree and to avoid delay.
Order XXI Rule 41 is applicable to execution by arrest and detention also. In Voona Surya Rao –
Vs – Salina Sarathi and others, the Hon'ble High Court held that the application under Rule 41 is
allowed in EP for arrest also.
Non-examination of Judgment-debtor as to his assets cannot be used as a ground of
prejudice Under Order XXI Rule 90 of CPC [Karnataka Bank – Vs – K.Shamanna and others]
Attachment in case of decree for Rent or Mesne Profits or other matter, amount of which to be
subsequently be determined :-
Order XXI Rule 42 of CPC Says attachment of property in case of decree for Rent or Mesne
Profits. A decree directing an inquiry as to rent or mesne profits or any other matter in money decree
are within the meaning of this rule. Attachment of property of Judgment-debtor cannot be made
under this rule after the amount is ascertained in an enquiry [Ghanshamdas – Vs- Shivarama
Subramaniam]
In N. Janakamma – Vs – B.Venkata Lakshmamma, it was held that mere pendency of an
application for a decree for mesne profits cannot constitute a basis for filing an application under Rule 42 of
Order XXI. It is mandatory that a decree must be in existence directing payment of mesne profits, before the
said provision is pressed into service.

Attachment after preliminary decree and before final decree

Where the attachment is sought after passing of preliminary decree and before final decree,
such attachment is covered by Order XXI Rule 42
 79

apart from Order XXXVIII Rule 5 of CPC. [Ouseph Sakaria – Vs – Cherian Joseph]
Attachment of movable property other than agricultural produce in possession of J.Dr.
Rule 43 of Order XXI deals with procedure of attachment of movable property other than
agricultural produce in possession of J.Dr. Rule 44 deals with attachment of agricultural produce.
Attachment under Rule 43 by actual seizure of movables of Judgment-debtor. If they are with some other
person, the procedure prescribed under Rule 46 should be followed.
Basic distinction between attachment of movable property and immovable property
The basic distinction between attachment of movable property and immovable property is that in
the former case, application for physical possession is necessary and in the latter, it is not so. The
attachment of movable property is legally effected only by actual seizure and possession [B.Venkatadri
Reddy Vs – P.A. Vanajakshi]
Rules from 252 to 257 of Civil Rules of Practice deal with the Procedure to be followed for
attachment of movable property.
As per Rule 252, when movable property is attached in execution of any civil process, the
attaching officer shall give a copy of the list of attached property with description sufficient for
identification. to the person from whose possession the movable property is attached. If he is not
present, then, to any adult male member of the family of such person, who is present.
Sub-rule (1) of Rule 253 says that if the property attached consists of Government or other
securities, jewels or other valuable articles of small bulk, the Nazir shall keep the same together with a
descriptive list in a box (not the ordinary cash chest of the Court) under lock and seal and send the box for
safe custody to the nearest Government Treasury under the orders of the Judge.
Sub-Rule (2) says that in other cases, attached property brought to the Court shall be retained
with the Nazir in the Court House, if it can conveniently be stored or kept there.
 80

Time of attachment

Referring to Sec.62 of CPC which speaks that an attachment of movable property can be made
after sunrise and before sunset and the exact time of sunrise or sunset will vary with the moth of every year.
It is not the law that the attachment should be made at or before 6:00 PM or 6:30 PM [Tika Ram – Vs –
State]

Decree-holder's custody

Whether the attaching Field Assistant keeps the movable property attached in his custody or
entrusts it to a Sapurdar, the possession of the Amin or Sapurdar, is in law. the possession of the
Court. In case, the property is kept in the custody of the decree-holder, the decree-holder's custody is not
in his capacity as decree-holder but only as the bailee of the Sapurdar. [Sapurdar Teeka & Ors – Vs – State
of UP]
Conditions to be satisfied for Rule 43

For application of Rule 43, two conditions shall be satisfied. First, there must be an order for
attachment and secondly, actual seizure of property in execution of order. Because of actual seizure, the
attached property comes to the possession of the Court.
Rule 43-A contemplates three contigencies. First one, as per sub-rule (1), in case the attaching
officer does not act under the proviso to Rule 43, (where the property seized from the possession of J.Dr
was not subject to speedy decay), the attaching officer has to sell the property at once. Second one, if he
does not sell it away, at the instance of J.Dr or the D.Hr or at the instance of any other person interested
in such property, the attaching officer may leave the property in the village in the custody of a respected
person. The third one is, Order 38 Rules 9 & 11-A shall be read conjointly with Order 21 Rule 43-A. In
nut-shell, attachment before judgment can be withdrawn when security is furnished or when suit is
dismissed or when the suit is dismissed for default. But the attachment does not revive merely because the
suit has been restored (Rule 11-A(2) of Order 38), except when the Court ordered that the attachment
shall subsist for a period of ............ (at the time of dismissing the suit).
 81

Attachment of Agricultural Produce (Order XXI Rule 44)

This rule deals with the procedure of attachment of agricultural produce. This rule applies only
when the property is in possession of the Judgment-debtor. Where the property to be attached is
agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment -

(a) where such produce is a growing crop, on the land on which such crop has grown, or ;

(b) where such prduce has been cut or gathered, on the thrashing floor or place for treading
out grain or the like or fodder-stock or on which it is deposited.
Another copy on the outer door or on some other conspicuous part of the house in which the
Judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other
conspicuous part of the house in which he carries on business or personally works for grain or in which he
is known to have last resided or carried on business or personally worked for grain; and the produce
shall thereupon be deemed to have passed into the possession of the Court.
The expression 'agricultural produce' is confined to growing crop standing on the land or fodder-
stock. The grain separated from chaff ceases to remain agricultural produce [Bhabhoot Singh – Vs –
Ghanshyam Durga Prasad].
Order XXI Rule 45 deals with the provisions as to Agricultural Produce under attachment.
Attachment of shares in movables

Order XXI Rule 47 deals with the attachment of share in movables. Under this rule the attachment
of share of judgment-debtor along with another is possible only by issuing a notice of prohibitory order to
the judgment-debtor and attachment by seizure is against the provisions of this rule. If the Court finds
that the claimant has share in the property attached, the procedure is to release the entire property
from attachment and to proceed by way of attachment under this rule.
 82

Attachment of Immovable property

Secs.60 & 64 and Order XXI Rule 54 deals with Attachment of Immovable property. The prescribed
form used for issuance of Prohibitory Order Under Order XXI Rule 54 is Form No.24 of Appendix E of
CPC.
Order XXI Rule 54 prescribes a procedure regarding attachment of immovable property. Sub-rule
(1) says that in case of immovable properties, attachment shall be made by an Order prohibiting the
Judgment Debtor from transferring or charging the property in any way and all persons from taking any
benefit from such transfer or charge.
Sub-rule (2) says that such an order of attachment shall be proclaimed at some place or
adjacent to the property attached by beat of tom tom or other customary modes and a copy of the
Order shall be affixed on a conspicuous part of the property and then in a Court house. It further says that
where the property is land paying revenue to the Government , then the said Publication should be
made by affixing a copy thereof in the office of the Collector of the District in which the land is situated.
Attachment of the property at the instance of Judgment-debtor is unknown to Law [Vakaruddin
Alikhan – Vs – Syed Abdul Mazid]. The object of issuing a prohibitory order under this rule is to inform
the Judgment-debtor that the property had been attached and he should not transfer or encumber the
property thereafter [Deshbandh Gupta – Vs – N.L. Anand].
No separate attachment is required

No separate attachment is required in execution proceedings, when property was attached before
judgment as contemplated Under Rule 5 of Order XXXVIII CPC [N.Mohana Kumar – Vs – Bayani Lakshmi
Narasimhaiah].
Private Transfer – Sec.64

Sec.64 contemplates only one attachment and no other. When once attachment is made and if
there is any transfer or delivery of attached property contrary to such attachment, such a transfer would be
void as against all claims enforceable under that attachment. The object of this section is to prevent
fraud on decree-holders and also to preserve intact the
 83

rights of the attaching creditor against attached property by prohibiting private alienation pending
litigation.
Necessity of attachment

Attachment of property is neither necessary nor essential step for sale of property of judgment-
debtor [Pedda Edla Ram Kishtaiah – Vs – Manne Pochaiah]. Failure to attach the property before the
Court sale is only an irregularity which becomes material only if the property had in fact been privately
transferred before the Court sale [Kanhaiya Lal – Vs – Dr. D.R. Banaji].
Failure of J.Dr to attend in pursuance of notice

Where a Judgment-debtor having received notice under Order XXI Rule 54(1-A) of CPC, fails
to attend before the Court and gives the valuation of the property to be included in the proclamation of sale
and thereby, his valuation is not included in the sale proclamation, held, he cannot complain that the
sale is vitiated [V.V.Narayan Chetty – Vs – Nenla Dhanamma].

Order XXI Rule 54(1-A)

Rule 54 provides attachment of immovable property and the procedure for proclamation of
such attachment. In order to minimise the delay in execution of decree, this sub-rule (1-A) was inserted to
provide that the order shall also specify a date on which the Judgment-debtor is to attend the Court, to
take notice on the date fixed for settling the terms of proclamation. Mere issuance of notice under Order XXI
Rule 54 cannot be construed as notice under sub-rule (1-A) of Rule 54 of Order XXI CPC [P. Narayana
Reddy – Vs – M. Reddeppa Reddy].
Attachment of negotiable instruments

Order XXI Rule 51 says that where the property is a negotiable instrument not deposited in a
Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the
instrument shall be brought to Court and held subject to further orders of the Court. The
prescribed form used for issuance of Order of Attachment Under Order XXI Rule 51 is Form No.20 of
Appendix-E of CPC.
 84

Attachment of property of partnership Firm

Order XXI Rule 49 of CPC deals with Attachment of partnership firm property. The general rule
under sub-rule (1) of Rule 49 is that property belong to a partnership firm, shall be attached or sold in
execution of a decree other than a decree passed against the firm or against the partners in the firm as
such. However, the general rule has exemptions otherwise.
Sub-rule (2) provides that “on the application of the holder of a decree against a partner, the
Court may make an order charging the interest of such partner in the partnership property and profits
with payment of the amount due under the decree, and may, by the same or a subsequent order,
appoint a Receiver of the share of such partner in the profits (whether already declared or accruing)
and of any other money which may be coming to him in respect of the partnership and direct accounts
and inquiries and make an order for the sale of such interest or other orders as might have been
directed or made if a charge had been made in favour of the decree holder by such partner, or as the
circumstances of the case may require.
Execution of Decree against firm (Order XXI Rule 50)

Decree against firm can be executed against (i) partnership property;

(ii) any person who has appeared individually in his own name and has been served with notice Under
Order XXX Rules 6 or 7 ; (iii) a person who has admitted himself to be a partner ; and (iv) one who has been
served with notice as partner but has failed to appear.
Distinction between Order XX and Order XXI Rule 50

Rule 50 should be read with the provisions of Order XXX; the latter deals with the procedure in
suits instituted by or against firms, while this rule deals with the mode of execution of decrees which
have been obtained against firm in the firm name [Gambhir Mal Pandiya – Vs – JK Jute Mills Company
Limited, Kanpur].
Liability of partners is joint and several

In Ashuthosh – Vs – State of Rajasthan, it was held that it is open to the Creditor of the firm to
recover the debt of the firm from anyone or more of the partners. The Hon'ble Supreme Court was of
the consistent opinion
 85

that, execution under Rule 49 of Order 21 can only be granted where a decree has been passed
against a firm.
Principles of Rateable Distribution applicable to Rule 52

The principle of rateable distribution is applicable to the case where two or more decree holders
obtains decree and applies for execution. The power to rateably distribute money vest in the attaching
Court only [S.Pulleswara Rao – Vs – M.B. Kutumba Rao]
DETERMINATION, REMOVAL & REVIVAL OF ATTACHMENT [Order XXI
Rule 55] :

Order XXI Rule 55 deals with the automatic termination of attachment on satisfaction of decree.
This rule is not applicable to the cases of attachment made before judgment, when execution petition
was dismissed for default, but is applicable to the cases of satisfaction of decree.
The words “amount decreed” in Clause (a) of Rule 55 of Order XXI means in the case of installment
decree, the installment which has become due in respect of which the attachment has been made. When
money is attached and brought into the Court in execution of decree for payment of money, it cannot be
said that the Judgment-debtor has paid the amount into Court under Clause (a) and attachment
would continue until that amount is disposed off by the Court by paying it to the decree-holder or
otherwise.
Revival of Attachment

There can be no revival of attachment, when the suit is dismissed for default initially and
subsequently decreed by the same Court or a superior Court. Attachment comes to an end on the sale
of property, but the same will be revived, when the sale is set aside.
 86

Presented by : Sri G.Amarangeswara Rao

Addl. Judicial 1st Class Magistrate,
Avanigadda.

Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.

2. Adjudication of litigation.

3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into existence where
the civil litigation has been instituted with the presentment of plaint. Decree means operation or
conclusiveness of judgment. Implementation of a decree will be done only when parties has filed
application in that regard. A decree or order will be executed by court as facilitative and not as
obligation. If a party is not approaching court, then the court has no obligation to implement it suomotto. A
decree will be executed by the court which has passed the judgment. In exceptional circumstances, the
judgment will be implemented by other court which is having competency in that regard.

Execution is the medium by which a decree- holder compels the judgment- debtor to carry out
the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits
of the judgment. The execution is complete when the judgment-creditor or decree- holder gets money or
other thing awarded to him by judgment, decree or order.

PROCEDURE IN EXECUTION:

Section 51 to 54 talks about procedure in execution or mode for execution.

Sec 51 C.P.C: this section gives the power to court to enforce the decree in general. This section defines the
jurisdiction and power of the court to enforce execution. Application for execution of decree under
this section may be either oral (order 21 rule 10) or written (order 21, rule 11). Party has to choose the
mode of implementation of decree. Court may execute decree as per the choice prayed by the decree-
holder or as court may thinks fit.
 87

Mode of executing decree under section 51:

(a). By delivery of any property specifically decreed. Property may be movable or immovable

(b). By attachment and sale of the property or by sale without attachment of the property.

Under clause (B) of section 51 it is within the power of court to attach the property if it is situated within
its jurisdiction.

(c). Court can execute decree by mode of arrest and detention. no execution of decree by arrest or
detention of judgment-debtor unless reasonable opportunity is given in the form of show cause notice as
why he should not be imprisoned.

(d). It can be executed by appointing a receiver. Within the purview of this section it is permissible to
appoint decree-holder himself as the receiver of the judgment-debtors land.

(e). Clause (e) is the residuary clause and comes into play only when the decree cannot be executed in
any of the modes prescribed under clause (a) to

MODE OF EXECUTION.

Thus, the code lays down various modes of execution. After the decree-holder files an
application for execution of decree, the executing court can enforce execution. A decree may be enforced
by

i) Delivery of any property specified in the decree,

ii) By attachment and sale or by sale without attachment of the property, or By arrest
and detention, or
iii) By appointing a receiver, or
iv) By effecting partition, or
v) Any such manner which the nature of relief requires.
ATTACHEMENT OF PROPERTY

A decree may also be executed on the application of the decree-holder by attachment and sale only
sale without attachment of property. The code recognizes the right of the decree-holder to attach the
property of the judgment debtor in execution proceeding and lays down the procedure to effect
attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals
 88

with the subject of attachment of property. 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. The code also declares that a private alienation of property after attachment is void.

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt therefrom. All salable property( movable or immovable) belonging to the
judgment-debtor or over which or the portion of which he has a disposing power which he may
exercise for his own benefit may be attached and sold in execution of a decree against him.

Section 61 deals where the judgment-debtor is agriculturalist. It state that judgment-debtor is

agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of attachment
of agricultural product depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property through different decree,
then it will be looked, that which court is superior. The value of the property will determine whether further
attachment can be done or not.
Which property is liable for attachment?

The property belonging to the judgment debtor, or property over which, or the profits of which,

he has a disposing power which he may exercise for his own benefit, is liable to attachment and sale in

execution of a decree.

The property liable to attachment may be 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, all other saleable
property, movable or immovable. The property
 89

may be held in the name of the judgment debtor or by a trustee for his benefit or on his behalf.

The following property of the judgment debtor shall not be liable

to such attachment or sale:

Personal property

(i) clothes, cooking vessels, beds of the judgment debtor, his wife and children, and personal
ornaments which as per religious usage, cannot be parted with by any woman
(ii) tools of artisans – court decisions have held that it only includes movable tools and not
immovable equipment.
(iii) if the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed
grain as the court deems fit 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
(iv) houses and other buildings along with the materials and the land appurtenant thereto which is
necessary for their enjoyment, which belongs to an agriculturist or a labourer or any domestic servant
and is occupied by him
(v) all moneys payable under a policy of insurance on the life of the judgment debtor – no
conditions have been stipulated as to when the money should become payable, i.e., policies which mature
after a fixed term or after the death of the assured. In certain circumstances, policies for the benefit of a
judgment debtor’s wife and children under the Married Woman’s Property Act, 1874, are free from
attachment.
(vi) tenancies in respect of a residential building covered by the
provisions of any Rent Control Act
Salary

(i) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any
other employer, or payable out of any notified service family pension fund and political pension,
 90

(ii) the wages of labourers and domestic servants, whether payable in cash or kind

(iii) salary to the extent of the first Rs. 1,000 and 2/3 of the balance in execution of any decree other

than a decree for maintenance. If any part of the attachable salary has been under attachment, for 24
months, then such portion shall be exempt from attachment until the expiry of a further period of 12
months. Where the attachment has been made in execution of one decree, it shall, after the attachment has
continued for a total period of 24 months, be finally exempt from attachment in execution of that decree

(iv) 1/3 of the salary in execution of any decree for maintenance

(v) salary payable to persons covered by the Air Force Act, 1950, or the Army Act, 1950, or the
Navy Act, 1957,

(vi) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds

Act, 1925, or Public Provident Fund Act for the time being applies, in so far as they are declared by the

Acts to be not liable to attachment

(vii) any allowance forming part of the emoluments of any servant of the Government/ railway / local
authority which has been notified to be exempt from attachment, and any subsistence grant or
allowance made to any such servant while under suspension

(viii) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree
Incorporeal property
(i) a mere right to sue for damages

(ii) any right of personal service

(iii) an expectancy of succession by survivorship or other merely contingent or possible

right or interest

(iv) a right to future maintenance

(v) where the Judgment debtor is a person liable for the payment of land revenue, any

movable property which, under any law for the time

 91

being applicable to him, is exempt from sale for the recovery of an arrears of such revenue

(vi) books of account

whether the FDRs which are with the Bank and on which the Bank claims a general lien can be
attached?

So far as the attachment is concerned, the banker's lien cannot by itself be a bar for such
attachment. In Syndicate Bank Vs. Vijaya Kumar and others (AIR-1992-SC-1066), the Supreme
Court considered the banker's lien and held that the banker's lien would not be a bar for such attachment
of FDRs in execution proceedings against the customer. The banker as a gamishee when the attachment
notice is served as to go before the court and obtained suitable direction for safeguarding its interest and
this becomes clear from the perusal of Order 21 Rule 46(a) and Civil Procedure Code but as the bank had
the liberty to adjust from the proceeds of FDRs towards the dues to the bank if there was any
balance left after such adjustment that only will be the amount which would belong to the depositor
namely the judgement debtor and only such amount if any, can be attached in discharge or a decree.

Mode of Attachment

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.

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.
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
 92

property. In case the property is a negotiable instrument the attachment shall be made by way of an
actual seizure and brought to the court. Rules 49 and 50 provide for attachment of property of a
partnership firm. 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.

Effect of Attachment

An attachment does not create any title of the decree- holder to the property nor does it create a
lien or charge over the property for the sum due to the decree-holder. The judgment debtor continues
to enjoy the attached property.

All that an attachment does is to prevent a private-transfer and that no person can benefit from a
subsequent transfer of the attached property. S.
64 of the Code provides for such private alienation. Once a property has been attached, any private
alienation of such property by private transfer or delivery and any payment to the judgment debtor of
any debt, dividend, etc., contrary to such attachment shall be void as against all claims enforceable
under the attachment. S.64 applies whether the property stands in the name of the judgment debtor or
any other person who is a name lender, i.e., benami property – Pradyut Shah, AIR 1979 Bom 166.
However, if the transfer is by an operation of law or pursuant to a Court order, then s.64 does not apply.
It only covers private transfers, such as, voluntary sales, gifts, mortgages. It may be noted that the
private transfers are not void ab initio but only void as against all claims enforceable under the
attachment. There is a difference of opinion amongst various Courts as to whether or not any private
transfer after attachment but in pursuance of a contract of sale executed prior to attachment is covered
by s. 64. Various decisions have held that in order that an attachment renders a subsequent alienation
as void u/s. 64, the attachment must follow the process laid down under the Code, e.g., Rules 41 to 57 of
Order 21.
 93

Objection as to attachment can be made even after sale of the attached property.

In Kancherla Lakshminarayana Vs. Mattaparthi Syamala & Ors in 2008 (14) SCC Hon'ble
Apex court approved the view of Hon'ble Andhra Pradesh High Court in M/s.Magunta Mining Co. v. M.
Kondaramireddy & Another [AIR (1983) A.P. 335] in relation to objection under Order XXI Rule
58 CPC. The objector was none else but the son of the Judgment-Debtor whose property was
auctioned. The objection was that since there was a prior lease in respect of the said property and
since in pursuance of that lease the objector-appellant had been in possession of the same and, therefore,
the attachment was not valid and has to be vacated. An objection was also raised that the properties which
were attached were already sold and, therefore, the objection to the attachment and the appeal had become
infructuous. The Court, therefore, dealt with the effect of the court sale conducted by the lower court. It
was an admitted position that before the said order of High Court reached the sale was already
completed in respect of all the items where the Decree-holder himself purchased the properties. It is also
seen from the facts that there the sale was not confirmed. The Division Bench, speaking through
Hon'ble Jagannadha Roa, J. (as His Lordship then was) observed in para 15:

"Whenever a claim is preferred under O. 21 R. 58 CPC against attachment of immovable

properties, the fact that the properties are sold or the sale confirmed will not deprive the court of its
jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial court
or the appellate court (under the amended Code) and in the event of the claim being allowed, the sale
and the confirmation of sale shall to that extent be treated as a nullity and of no effect, as the
judgment-debtor had no title which could pay to the court auction-purchaser."

Further, Honble Apex court held that judgments of the Patna High Court reported in Janki

Mohan & Anr. V. Dr. S. Samaddar & Ors. [AIR 1962 Patna 403]
 94

Where the High Court relied on the judgments of the Calcutta High Court in Sasthi Charan
Biswan Banik & Ors. V. Gopal Chandra Saha & Ors. [AIR 1937 Cal 390] as also judgment of Patna
High Court in Mt.Puhupdei Kuar v. Ramcharitar Barhi & Ors. [AIR 1924 Patna 76 is not good law.
In Vannarakkal Kallalathil Sreedharan vs. Chandramaath Balakrishnan & Anr. [(1990) 3 SCC
291] Hon'ble Apex Court in para 9 observed:
".The agreement for sale indeed creates an obligation attached to the ownership of property and since the
attaching creditor is entitled to attach only the right, title and interest of the judgment -debtor, the
attachment cannot be free from the obligations incurred under the contract for sale"
Omission to serve notice is an irregularity. But it it will not make the sale void.
In Desh Bandhu Gupta vs. N.L. Anand and Rajinder Singh, 1994(1) SCC 131. it was held that
omission to serve notice is an irregularity. But it it will not make the sale void.

PERCEPT

Section 46- “precept” means a command, an order, a writ or a warrant. A percept is an order
or direction given by court which passed the decree to a court which would be competent to execute the
decree to attach any property belonging to the judgement-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-
holder, issue a percept to that court within whose jurisdiction the property of the judgement-debtor is lying
to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgement- debtor not located within the
jurisdiction of the court which passed the decree so that interest of the decree-holder is safeguarded and
protected.
It is interim attachment of the property which lies outside the jurisdiction of court which has
passed the order. To protect the interest of the decree holder on his application will issue percept to the
court in whose jurisdiction property is situated to attach the property of the judgement- debtor. The interim
order for attachment is valid for the period of only 2 months.
 95

GARNISHEE ORDER

It is the proceeding by which the decree-holder seeks to reach money or property of the
judgement-debtor in the hands of a third party (debtor of judgement-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay C, since B owes the said amount to C,
who has obtained the order.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the
judgement-debtor because the latter is indebted to the garnisher.

Attachment- Effect of dismissal of execution position.

Where the Court for any reason, passes any order dismissing the application for execution of the
decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the
period up to which such attachment shall continue or the date on which such attachment shall cease
(Order 21, Rule 57).

Determination of Attachment.

The attachment automatically ceases where the Court for any reason has dismissed the application
for execution of the decree (and has omitted to give and discretion to that effect).
Removal of attachment after satisfaction of the decree

In the following circumstances, the attachment may be terminated:

(1) When all the costs and charges of the decretal amount are paid into the Court.

(2) Satisfaction of the decree is otherwise made through the Court or certified to the Court.

(3) The decree is set aside.

(4) On furnishing the required security by the J.D.

(5) By compromise between the parties.

(6) By an express order withdrawing or putting an end to the attachment.

(7) By sale of the attached property in execution of the decree.

(8) By abandonment of the attachment by the decree – holder.

 96

Transfer in violation of attachment order is illegal.

In Barnes Investments Ltd. & Ors vs Raj K. Gupta & Ors AIR 2001 SC 2818, Hon'ble Apex court held
that Order 21, Rule 54 in terms prohibits the judgment debtor from transfer or charging property attached
in any way and all persons from taking any benefit from such transfer or charge. As long the order of
attachment is operative, no third party rights can be created.

In MANNALAL KHETAN V/S KEDAR NATH KHETAN [ 1977 (2) SCC

424], Hon'ble Apex court held that order 21, Rule 46 of the Code of Civil Procedure lays down that in the
case of shares in the capital of a corporation the attachment shall be made by a written order prohibiting
in the case of the share, the person in whose name the share may be standing from transferring the same.
In the present case, in addition to the prohibition issued under O. 21, Rule 46 a separate prohibitory
order was issued to the company in form No. 18 in Appendix E of the First Schedule of the Code of Civil
Procedure. Therefore, the company by registering the transfer of shares was obviously permitting the
transfer and such action on the part of the company being in violation of the prohibition is contrary to law.

Attachment before judgment

An attachment before judgment is to enable the plaintiff to realize the amount of the decree,
supposing a decree eventually made, from the defendant property’. This is the object of the Order 38 rule 5
of The Civil Procedure Code,1908. The scope and object of Order 38 rule 5 of CPC and the rules
followed thereon merely to protect a plaintiff against loss arising from the defendant making away with his
property pending suit. An attachment before judgment is in the nature of an interlocutory order. In
Gurunadha Rao v. Gamini Krishnayya, a Division Bench of the Hon’ble High Court of Andhra Pradesh held
that to be valid an attachment must be specific and clear in its purport. The Scheme of Order 38 and the
use of the words `to obstruct or delay the execution of any decree that may be passed against him’ in Rule 5
make it clear that before exercising the power under the said Rule, the court should be satisfied that
there is a reasonable chance of a decree being passed in the suit against the defendant. This
 97

would mean that the court should be satisfied the plaintiff has a prima facie case. If the averments in the
plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima
facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should
be protected by exercising power under Order 38 Rule 5CPC.
. (See the Hon’ble Supreme Court’s ruling in Raman Tech. & Process Engg. Co. & Anr. Vs.Solanki
Traders, 2008 (2) SCC 302).

In Shivaraya and Others Vs. Sharnappa and Others [AIR 1968 Mysore 283], the Hon’ble
Single Judge followed Bankim Chandra and Others’ case and Tavvala Veeraswamy’s case which
considered such interlocutory orders to have been passed in exercise of the Court’s ancillary powers.
His Lordship Dawson-Miller C. J. stated as follows :”The power given to the Court to attach a deft.’s
property before judgment, is never meant to be exercised lightly or without clear proof of the
existence of the mischief aimed at in the rule. (Ref. AIR 1951 Cal 156).

In My.Forex Services (P) Ltd., vs. M/s.City Men Forex and Travels Ltd., and others,(AIR 2008 Madras 42,)
Hon'ble High Court of Madras had an occasion to consider the effect of attachment before judgment and at
paragraphs 18 and 19, this Court has held as follows:-

“18.The Division Bench has held that when an attachment is effected the person against whom the order is
made is prohibited from transferring the property and under Order 38 Rule 10 Code of Civil Procedure,
the Attachment Before Judgment shall not affect the rights of persons not parties to the suit nor bar
any person holding a decree against the defendant from applying for the sale of the property under
attachment in execution of such decree.
19.In AIR 1994 Guj 2 Syndicate Bank v. National Wire Products . (cited supra)
the Gujarath High Court has held that Attachment Before Judgment under Order 38, Rule 5 shall not
affect the rights existing prior to the date of
 98

attachment and the order passed under Order 38, Rule 5 for attachment of property before judgment
does not confer any title, charge, lien or priority in favour of a person attaching it. The Gujarat High
Court has also pointed out that Order 38 Rule 10 that an attachment before judgment does not, in any
way affect the rights of the persons, in respect of the disputed property who are not parties to the suit.”
In Hamda Ammal v. Avadiappa Pathar, (1991) 1 SCC 715, the Supreme Court emphasised that order
XXXVIII Rule 5 would not apply where a sale- deed had already been executed by the Defendant in favour
of third person. It was pointed out that a transaction of sale, having already taken place even prior to
the institution of a Suit, it could not be said to be made with intention to obstruct or delay the execution of
any decree. Interestingly, the Supreme Court further observed, "It would be a different case altogether if a
creditor wants to assail such transfer by sale under S.53 of the Transfer of Property Act, 1882." The
Supreme Court no doubt emphasised Order
XXXVIII Rule 10 to show that an attachment before judgment shall not affect the rights existing prior
to the attachment of persons not parties to the Suit. We are unable to accept the contention of the
Respondents that this case indicates that the issue of alienation could not be raised in the proceedings for
adjudication of the claim to the property or that it could be raised only in a substantive Suit. The
Supreme Court has merely indicated that S.53 is a different cup of tea, without indicating the
manner in which
S.53 had be pressed forward."

Further hon'ble Bombay High Court in SBI Home Finance Ltd., V. Credential Finance Ltd. And
others: A.I.R. 2001 Bombay 179. In that case, in a money suit, immovable property was attached before
judgment. The property was transferred to third parties before the order of attachment was made. The
learned Single Judge dismissed the application for attachment before judgment. On appeal to the Division
Bench, the order was set aside and the notice of motion was restored. It was held:
"10. Undoubtedly, the properties in question were agreed to be and actually sold to the third and the fourth
respondents much before the date on which the Suit was brought by the appellant. Normally,
therefore, by reason of
 99

Rule 10 of Order XXXVIII, an attachment before judgment could not be levied against the properties
which had already been sold to the third and the fourth respondents. Do the provisions of Section 53 of
the Transfer of Property Act, 1882 make any change?, is the issue raised in the present Appeal.

11. Section 53 of the Transfer of Property Act, 1882 enables a creditor to avoid the transfer of
immovable property which has been made with intent to defraud, defeat or delay and such a transfer
would be voidable at the option of any creditor so defrauded, defeated or delayed. In the instant case, if
the appellant can show that the transfer of the office premises at Nariman Point, Mumbai was made by
the first respondent to the third and the fourth respondents under circumstances which would fall
within the ambit of Section 53 of the Transfer of Property Act, 1882, the appellant would be entitled to
avoid the transfer. In such a situation, the said properties shall be treated as properties of the first
respondent itself, and the fact that a fraudulent attempt was made to put them beyond the reach of the
appellant creditor, would be good reason to make an order of attachment before judgment under Order
38, Rule 5 of the Civil Procedure Code. We would have, therefore, thought that the issue as to whether
the circumstances contemplated by Section 53 of the Transfer of Property Act, 1882 existed would have
been first determined. ...
The end by an order in Order 21 rule 57 will not put an end to attachment made before judgment.
In Meyyappa Chettiar vs Chidambaram Chettiar (1924) 46 MLJ 415, it was held that “If the
matter were res Integra, I should without hesitation be prepared to hold that the attachment before
Judgment lasts until the Court puts an end to it by an order to that effect, or until it is otherwise brought
to an end by reason of any of the provisions of Order 38, but that it cannot by implication be brought to
an end by an order under Order 21, Rule 57.”
 100

Presented by : Smt. M.Satya Kumari,

Junior Civil Judge, Kaikaluru.

It is very well known that the conclusion of civil suit comes to end only on execution. The
literary meaning of Execution is the carrying out of some act or course of conduct to its completion.
As per the above, the civil litigation comes to end only after execution is completed. In general,
on plain reading of the provisions of the execution, it appears that they are more weighed in favour of
Judgment debtor than in favour of the Decree Holder. On each and every occasion, a judgment debtor is
given an opportunity to participate in the proceedings. Sometimes, the Court notices that the judgment
debtor willfully and wantonly evading or avoiding the execution proceedings, however courts are bound to
follow the requisite provisions scrupulously. Therefore, it is necessary to consider the Execution
proceedings in proper perspective and in the light of the provisions of Law and relevant forms.

Out of the several forms of execution, ATTACHMENT is one of the

form.

KINDS OF ATTACHMENTS AS PER CODE OF CIVIL PROCEDURE, 1908:

1) Attachment before judgment (Or. XXXVIII R5)

2) Attachment after judgment (Or. XXI)

ATTACHMENT AFTER JUDGMENT:

What kind of property to be attached?

As per Section 60 CPC the following property is liable for attachment: 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 all other salable
property, movable or immovable property belonging to the J.Dr or over which, or 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 J.Dr or by another person in trust for him or on his behalf.

What kind of property cannot be attached?

As per Section 60 CPC, the following property is not liable for attachment:
 101

(c) Necessary waring apparels, cooking vessels, beds and bedding of J.Dr., his wife and children,
personal ornaments.
(d) Tools of artisans and where the J.Dr is an agriculturist, his implements of husbandry
(e) Books of accounts
(f) Pension (as per S.11 of Pensions Act)
(g) Salary to the extent of first one thousand rupees and two thirds of the remainder in
execution of any decree other than maintenance (provided that where any part of such portion is
liable to attachment has been under attachment, whether continuously or intermittently, for a
total period of twenty four months, such portion shall be exempted from attachment until expiry
of further period of twelve months, and where such attachment has been made in execution of
one and the same decree shall, after the attachment has continued for a total period of 24
months, be finally exempted from attachment in the execution of decree)
(The word “salary” In the clause by virtue of the provisions of the Explanation-

II taken in all emoluments excluding allowance declared exempt from attachment under clause (i)
(Ramohana Krishna V Korla Vijaya Laxmi. 1997
(1) ALT 412)).

(HRA & DA are not exempted from attachment (K.Venkateswarlu v. D.Ranga Reddy, 2002 Supp.ALD 686 (DB)).
(Even the gratuity payable to the LRs of deceased employee is not liable for attachment
(P.S.Bharatsena Reddy v. Smt.Vallamma 2014 (1) ALT 633)). (When any part of attachable portion of
salary of J.Dr was under attachment in execution of decree for a total period of 24 months. It is exempt
from further attachment in execution of same decree even if there is a gap of 12 months after
completion of 24 months attachment (Shaik Noorjahan V. M.Rajeswari 2010(4) ALT 787)).

(b) One third of the salary in execution of any decree for maintenance.

Now let us deal with the realization of decree by attachment of salary of the J.Dr. Or.XXI Rule
48 provides for attachment of salary of a Government servant, including servants of Railways, local
authorities, Corporations of Government.
When a notice proposing the attachment is sent to the disbursing officer, the disbursing officer is
required to say if there is any other attachment is pending and if so, to what extent the attachment is
pending,
 102

so that the Court can restrict the subsequent attachment to the attachable portion of the salary for the
period permissible.
In regard to this type of attachment in most of the Courts we are facing the question,
“What is the action to be taken against the particular disbursing officer if he does not remit the
amount to the Court? Can the decree be executed against him and the amount to be realized
from him?
Under Order XXI R.48(3) CPC Central Government is made liable in case of employees of
Central Government, Railways, Major ports, Corporations established by Central Government or Govt.
Companies in which Central Government owns share capital. In regard to the employees of a State
Govt., local authority or of a Corporation established by a State Govt., the concerned State Govt., is made
liable for payment of the said amount.
(S.59 CPC has no application to the attachments under Rule 48 of Order XXI CPC (Salem Advocates
Bar Association V. Union of India (2005 (5) ALD 1 (SC)).
(Or.21 R.48 of the Code clearly stipulate that so far attachemnt of salary is concerned the Court which
passed decree may also order attachment of salary of J.Dr who is working outside jurisdiction of the Court
also (Janapa J.Reddy V.Shriram Chit Fund Pvt.Ltd. 2008 ALHC 2894 AP)).
Procedure for attachment of Movable & Agricultural Produce (Or.XXI Rules 43 to 53)
Rule 43 (1) Where the property to be attached is movable property, other than agricultural produce, in
the possession of the J.Dr., the attachment shall be made by actual seizure, and the attaching officer shall
keep the property in his own custody or in the custody of one of his subordinates, and shall be
responsible for the due custody thereof. Provided 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.
 103

Rule 252 of Civil Rules of Practice:

a) When movable property is attached in execution of any civil process, the attaching officer shall give a copy of
the list of attached property with description sufficient for identification to the person from whose
possession the property is attached, or if he is not present, then, to any adult male member of the family of
such person, who is present, or if none is present – shall affix it on the outer door of the house of such
person and shall note on the list dispatched or brought to the Court which issued the process, the
mode in which the copy of the list has been delivered or affixed.
If the attached property is cash, jewels et., (Rule 253 of Civil Rules Practice): If the property
attached consists of Government or other securities, jewels or other valuable articles of small bulk,
the Nazir shall keep the same together with a descriptive list in a box under lock and seal and send
the box for safe custody to the nearest Government Treasury under the orders of the Judge. In other
cases, attached property brought to the Court shall be retained by the Nazir in the Court house if it can
conveniently be stored or kept there.
(Whether the attaching amin keeps the movable property attached in his custody or entrusts them to a
supurdar, the possession of the amin or the sapurdar is in law the possession of the Court continues to
subsist. And in case the property is kept in custody of the D.Hr., the D.Hr's custody is not in his
capacity as the D.Hr but only as the bailles of the inputdar (Supurdar Teeka & Ors V State of U.P. AIR
1961 SC803).
DUTIES OF THE CUSTODIAN UNDER RULE 43-A:

e) If the custodian fails to produce the property inspite of receipt of notice before an officer deputed, the
Court shall direct the custodian to produce the property, but only on an application by J.Dr. or D.Hr. or
some other person interested in the property.

f) In consequence of failure of the custodian to produce the property in specific or did not it produce in the
same condition as it was when it was entrusted to him, he shall be liable to pay compensation for
any loss or damage caused by him due to his default.
 104

(There is another aspect of the matter Or.38 Rules 9 and 11-A shall be read conjointly with Or.21 Rule 43-A)

(i) Claims of attachment of movable to be made under Rule 58 of Order 21. Rule 44 of Order XXI
(Attachment of agricultural produce): Where the property to be attached is agricultural produce,
the attachment shall be made by affixing a copy of the warrant of attachment-

a) Where such produce is a growing crop, on the land on which such crop has grown or

b) Where such produce has been cut or gathered, on the threshing floor or place for trading out
grain or the like or fooder stack on or in which it is deposited, and another copy on the
outer door or on some other conspicuous part of the house in which the
J.Dr. Ordinarily resides. (Attachment and sale of standing crop on assigned land and harvested
produce derived therefrom are not prohibited under S.3 of A.P. Assigned Land (Prohibition of Transfers)
Act, 1977 (Myla Gantaiah V.Kadal Peddaraju, 2006

(6) ALT 236).

The next mode of execution prescribed for execution is by attachment of debt, share or other
property not in possession of J.Dr. The proceedings are called garnishee proceedings and the third party
who is liable to pay or deliver any property to the J.Dr. Is called garnishee. The attachment is effected by
issue of a prohibitory order as provided under Rule 46 of Or.XXI of CPC. For realizing such property,
procedure is prescribed as per Rule 46A to 461. On an application by the D.Hr. after attachment under
Rule 46, notice is to be issued to garnishee to remit the debt due from him to satisfy the decree of
attaching creditor or appear and show cause why he should not do so.
If he does not respond thereto either way, then the court can issue orders directing the
garnishee to comply with the notice given and thereafter execution can issue as if such order is a decree
passed against the garnishee. If he questions liability in its entirety or in part, but the admitted amount
is sufficient for discharge the decree of attaching D.Hr., then there is no need for the court to make an
enquiry into th disputed claim but can call upon him to satisfy the decree out of the admitted
amount and close
 105

the petition but, if the amount admitted is not sufficient to satisfy the decree, then the Court has to
enquire into the dispute raised by the garnishee.
(Disobeying the directions of garnishee – no contempt (Food Corporation of India V. Sukh Deo Prasad 2009(4)
ALD 68 (SC)).
(It is open to the garnishee to raise any such dispute immediately after the order of attachment made
or atleast while making the deposit. If neither objection is taken nor the application was contested even
though the authority was represented through the Government Pleader and allowed the proceedings come
to an end and the orders of garnishee attachment have become final as they remained unchallenged, but only
when the D.Hr. filed application for cheque to withdraw the amount of deposit, the garnishee cannot raise
the objection for the first time (Kuchimanchi Nagarani V Mantri Prasad Agnihothrudu, 2001 (1) ALD 105)).

Attachment of Immovable property:

Now let us deal with the attachment of immovable property which is provided under Order XXI Rule
54.
There is no need for attachment to be made in execution of mortgage decrees or charge decrees like
decrees for property tax or maintenance decrees where charge is created. Attachment is not required
again in execution where attachment before the judgment is made under Order 38 CPC.
The attachment is to be effected by not only prohibiting the alienation and proclaiming the same by
beat of Tom Tom at or near the place of attachment, but also by affixing the said proclamation of attachment
at a conspicuous part of the attached property and Notice Boards of the particular Panchayat,
Muncipality and Collectors Office and also Court House.
If any of the above requirements are not complied with, then it becomes defective attachment.
The said notice shall require the J.Dr to attend the Court on a prescribed day to take notice of
the date to be fixed for setting the terms of proclamation of sale. This notice will not be issued. In
case of mortgage,
 106

charge or attachment before judgment. An attachment gets terminated automatically when the decree is
satisfied or decree is set aside. When an execution application is dismissed for any reason after
attachment, the Court shall make an order regarding continuation or ceasing of attachment. If no
direction is given, the attachment ceases as per Or.XXI R 57 CPC (Rules 258, 259, 260 of Civil Rules of
Practice may be referred).
(Small causes Court has no power to order sale of immovable property).
Private alienation of property after attachment is void (Section 64 CPC).
 107

Presented by : Sri M.Jacob,

Addl. Junior Civil Judge, Jaggaiahpet.

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

1. The following property is liable to attachment and sale in execution of decree, namely, lands,
houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory
notes, Government securities, bonds or their securities for money debts, shares in a corporation and, save
as hereinafter mentioned, all other saleable property, movable or immovable, belonging 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:
Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(a) 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;

(b) 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 of the next following section;

(c) Houses and other buildings (with the materials and the sites hereof and the land immediately appurtenant
thereto and necessary for their enjoyment) belonging to (an agriculturist or a labourer or a domestic
servant) and occupied by him;

(d) Books of account;

(e) A mere right to sue for damages;

(f) Any right of personal service;

 108

(g) Stipends and gratuities allowed to pensioners of the Government (or of a local authority or of any other
employer), or payable out of any service family pension fund (notified in the official Gazette) by (the Central
Government or the State Government) in this behalf and political pension;

(h) The wages of labourers and domestic servants, whether payable in money or in kind;
(i) Salary to the extent of (the one thousand rupees) and two third of the remainder (in execution of any decree
other than a decree for maintenance):
(Provided that where any part of such portion of the salary as is liable to attachment has been
under attachment, whether continuously or intermittently, for a total period of twenty-four months,
such portion shall be exempt from attachment until the expiry of a further period of twelve months and
where such attachment has been made in execution of one and the same decree, shall, after the
attachment has continued for a total period of twenty-four months, be finally exempt for attachment in
execution of that decree.)

((ia)one-third of the salary in execution of any decree for maintenance;)

((j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Armey Act,
1950(46 of 1950), or the Navy Act, 1957 (62 of
1957), applies;)

(k) all compulsory deposits and other sums in or derived from and fund to which the Provident Funds Act,
(1925) (19 of 1925), for the time being applies insofar as they are declared by the said Act not to be liable
to attachment;
((ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act,
1968 (23 of 1968), for the time being applies, insofar as they are declared by the said Act as not to be
liable to attachment;
(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;
(kc) the interest of a lessee of a residential building to which the provisions of law for the time being in
force relating to control of rents and accommodation apply;)
 109

((l) any allowance forming part of the emoluments of any (servant of the Government) or of any servant of a
railway company or local authority which the (appropriate Government) may by notification in the Official
Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to (any such
servant) while under suspension;)

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by (any Indian law) to be exempt from liability to attachment or sale in
execution of a decree; and

(p) where the judgment debtor is a person liable for the payment of and revenue; any movable property
which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear
of such revenue.
Explanation I – The moneys payable in relation the matters mentioned in lauses (g), (h), (i), (ia), (j), (l) and
(o) are except from attachment or sale, whether before or after they are actually payable and, in the
case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually
payable.)
Explanation II – In clauses (1) and (ia), “Salary” means the total monthly emoluments, excluding any
allowance declared exempt from attachment under the provisions of clause (1), derived by a person from
his employment whether on duty or on leave.)
Explanation III –In clause (1) “appropriate Government” means –

(i) As respect any (person) in the service of the Central Government, or any servant of (a Railway
Administration) or of a cantonment authority or of the port authority of a major port, the Central
Government;
as respects any other (servant of the government) or a servant of any other ( ) local authority
skilled the State Government.)
Explanation IV – For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a
skilled, unskilled or semi-skilled labourer.
 110

Explanation V – Fr the purposes of this proviso, the expression “agriculturist” means a person who
cultivates land personally and who depends for his livelihood mainly on the income from agricultural land,
whether as owner, tenant, partner or agricultural labourer.
Explanation VI – For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land
personally, if he cultivates land –

(a) By his own labour; or

(b) By the labour of any member of his family; or

(c) By servants or labourers on wages payable in cash or in kind (not eing as a share of the produce), or both.)

((1-A) Not withstanding anything contained in any other law for the time being in force, an agreement by
which a person agrees to waive the benefit of any exemption under this section shall be void.)
(2) Nothing in this section shall be deemed( ) to exempt houses and other buildings ( with the materials
and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment)
from attachment or sale in execution of decrees for rent of any such house, building, site or land.
In the matter of attachment of properties to satisfy the claims in suit two stages are
contemplated:
1.Attachment before Judgment under Order 38 Rule 5 of C.P.C. 2.Subsequent to the decree
provided under Rule 42 of Order 21 of C.P.C.
Attachment incase of decree for Rent or mesne profits or other matter amount of which to be
subsequently determined. Where a decree directs enquiry as to the rent or mesne profits or any other
matter the property of the Judgment debtor may before amount due from him has been ascertained the
attached as in the case of an ordinary decree for the payment of in the absence of a decree directing
payment of mesne profits attachment under Order 21 Rule 42 of C.P.C cannot at all be prayed for which
was held in by the Honourable High Court of A.P in M.Janakamma Vs. B.Venkata Lakshmamma 2007(3)
A.L.D.169.
The property belonging to the Judgment debtor or property over which or the profits of
which he has a disposing powers which he may
 111

exercise for his own benefit it is liable to attachment and sale in execution of decree. The property liable to
attachment may be lands, houses or other building, goods, money, bank notes cheques, bills of exchange,
hundis, promissory notes, Government securities, bonds or other securities for money, debts, share, shares
in a corporation and other than the assets expressly excluded all other saleable property, movable or
immovable. The property may be held in the name of Judgment debtor or by a Trustee for his benefit
or on his behalf.
Order 21 Rule 41 to 57 of C.P.C deal with the manner which various properties or to be
attached. Rule 44 and 45 of C.P.C deal with a attachment of agricultural produce. Rule 49 and 50 of
C.P.C provide for attachment of property of partnership firm under Rule 54 of C.P.C 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.

61. Partial exemption of agricultural produce –

The state Government ( ) may, by general or special order published in the Official Gazette, declare that such
portion of agricultural produce, or of any class of agricultural produce, as may appear to the State
Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the
land and for the support of the judgment debtor and his family, shall, in the case of all agriculturists or
of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.

62. Seizure of property in dwelling-house: -

(1) No person executing any process under this Code directing or authorizing seizure of movable property
shall enter any dwelling-house after sunset and before sunrise.

(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the
occupancy of the Judgment-debtor and he refuses or in any way prevents access thereto, but when the
person executing any such process has duly gained access to any dwelling-house, he may break open the
door of any room in which he has reason to believe any such property to be.
 112

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs
of the country, does not appear in public, the person executing the process shall give notice to such woman
that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her
reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using
at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63. Property attached in execution of decrees of several Courts –

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more
Courts than one, the Court which shall receive or realize such property and shall determine any claim
thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no
difference in grade between such courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing
one of such decrees.
Explanation – for the purposes of sub section (2), “proceeding taken by a Court” does not include an order
allowing, to a decree-holder who has purchases property at a sale held in execution of a decree, set-off to
the extent of the purchase price payable by him.).

64. Private alienation of property after attachment to be void –

((1)) Where an attachment has been made, any private transfer or delivery of the property attached or of
any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to
such attachment, shall be void as against all claims enforceable under the attachment.
((2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any
interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered
before the attachment.)
Explanation – For the purposes of this section claims enforceable under an attachment include claims for
the rateable distribution of assets.
 113

EFFECT OF ATTACHMENT

An attachment does not create any title of the decree holder to the property nor does it create a
lien or charge over the property for the sum due to the decree holder. All that an attachment does its to
prevent a private transfer and that no person can benefit from a subsequent transfer of the attached
property shall by of the code provides for such to prevent alienation. Sec.64 applies whether the
property stands in the name of the Judgment debtor or any other person who is name lender i.e.
Benami property.
However if the transfer is by an operation of Law or pursuant to a court order then Sec.64 of
C.P.C does not apply. Though an attachment does not create any right in favour of entity but the courts
normally do not grant attachment unless the plaintiff establishes a praimafacie case.
ATTACHMENT BEFORE JUDGMENT

An attachment before Judgment is to enable the plaintiff to realize the amount of the decree
supporting a decree eventually made from the defendant property. The scope and object of Order 38
Rule 5 of C.P.C and the Rules followed there or merely to protect a plaintiff against loss arising from the
defendant making away with his property pending suit. An attachment before Judgment is a nature of
interlocutory order.
KEY FACTORS OF ORDER 38 RULE 5 of C.P.C.

1. Where the defendant may be called upon for furnishing security for production of property.

2. Scope of Rule.

3. Application of Order 38 Rule 5 of C.P.C.

4. Property without Jurisdiction.

5. Call for security. 6.Conditional

attachment.
7.Effect of attachment.

NO ATTACHMENT ON LIGHT GROUNDS

In 1866 in the case of Gamble Vs.Bholegir (BHCR 146, 141) it was observed that the
Jurisdiction attachment before Judgment should be exercised with great discretion and no court
should grant such an
 114

attachment on light grounds or unless it is perfectly satisfied with trust worthy evidence that the defendant
is about to dispose of his property or to remove it from the Jurisdiction of the court.
Some important Judgments of the Honourable High Court of Andhra Pradesh has to be
subject matter of attachment before Judgment.

1. Katari Ratna Rani Vs.Velagapudi Rama Rao and other 2003(6) A.L.T.79.

2. Mavidala Suresh Bau and other Vs.Tirumalasetty Krishna Murthy 2006

(3) A.L.T.250.
3. State ofAndhra Pradesh Vs.Prakash 2007 (1) A.L.D.133.

4. Sri Lakshmi Cloth Stores Vs.Ratna & Company, Machilipatnam 1999 (6) A.L.T.681.

5. Rammurthy and Others Vs. Srinivas Corporation General A.I.R.1989 A.P.58.

6.S.P.V.Babu Vs.Varalakshmi Fiance Corporation 1996(4) A.L.D.453.

7.Union Bank of India, Vishakapatnam case. A.I.R.1982 A.P.408.

 115

Presented by : Sri A.Rama Chandra Rao,

II Metropolitan Magistrate for Railways, Vijayawada.

The word “execution” means the process for enforcing or giving effect to the judgment of the
court. Execution is the enforcement of decrees and orders by the court to enable the decree-holder to realize
the fruits of the decree.
RELEVANT PROVISIONS FOR ATTACHMENT:

The law as to the attachment of standing crops, trees and salary is contained in Sections
60-64 and Order XXI, Rules 41-57, Civil Procedure Code. The changes made in Rules 43, 43A, 43B, 43C,
43D, 45, 53 and 54 of Order XXI CPC should be noted. Attention is drawn to the amendment of Section
60 of the Code of Civil Procedure by Act No. 66 of 1956 and 104 of 1976. Only one-third of the salary
would be exempted from attachment irrespective of the amount of the salary in execution of decrees
for maintenance.
The mode of attaching immovable property is by issuing a prohibitory order to the
judgment debtor and to the public generally. It shall require the judgment debtor to attend before the Court
on a specified date to take notice of the date so fixed for settling the terms of the proclamation of sale). The
order shall also take effect, as against of person claiming under a gratutious transfer from the judgment
debtor, from the date of attachment, as against others from the date they had knowledge of the passing
of the order of attachment or from the date of proclamation, whichever is earlier (Order XXI, Rule 54), three
copies of the prohibitory order shall be prepared when the property is land paying revenue to the
Government. Only two copies are necessary in case of other immovable property. The details given in
the schedule annexed to the order shall be identical with those given in the schedule of the property
given in the warrant strict compliance with the provisions of law is necessary to make the attachment valid.
The warrant, together with the requisite copies of the prohibitory, order shall be delivered to
the Nazir or through his subordinates, fix up the copies and proclaim the order, in accordance with the
directions given in the
 116

warrant. The Nazir will personally make upon the warrant the endorsement required by law, and return it
duly endorsed within the specified time to the Court. Any person deputed by the Nazir, who performs any of
the acts constituting the attachment, shall submit a separate return starting the manner in which, and the
day and hour at which, he did such act. This return will be attached by the Nazir to the warrant. (Where
the property is land situated in a cantonment, copies of the order shall also be forwarded to the Cantonment
Board and to the Military Estates officer in whose are that cantonment is situate.
The attention of all Civil Courts is drawn to the necessity of making it a point to
scrutinize the service of warrants of attachment before they take further action with regard to the sale
or temporary alienation of the property attached. The attachment of land and houses requires
particular care and the Court should thoroughly satisfy itself that all the formalities necessary for a legal
attachment, have been complied with. Failure to comply with these legal formalities may constitute
material irregularity, within the meaning of Order XXI, Rule 90 Code of Civil Procedure, and may
cause very serious trouble and loss to the parties later on. It should be noted that a copy of the
attachment order is first to be affixed on the property and then upon the Court house. All Courts will,
therefore, require the Reader to record a note on the warrant of attachment or on file, that the specific
formalities required by Law in the case, have been actually complied with. The Presiding Officer will
carefully scrutinize such note and initial it in token of its correctness.
Where the order is for the attachment of land, the warrant should, in accordance with the
provisions of Section 141 of the Punjab Land Revenue Act, XVII of 1887, be addressed to the Collector,
and be sent to him for execution, along with the necessary copies of the prohibitory order. The Collector
and his office will then be responsible for executing it in accordance with the specified legal
formalities, and to affix the necessary prohibitory orders, first on the property and then on the Court house
of the Judge issuing the attachment and in his own office. The Collector will return the warrant to the Court
concerned when it has been duly executed, with an
 117

endorsement under his signature certifying that all the legal formalities required have actually been
complied with, and the Court will thereafter proceed as directed above. Payment of drum-beating
charges may be allowed to be made at the discretion of the District Judge either: (a) in cash at the
spot, or (b) by postal stamps attached to the warrant, or(c) by Indian Postal Orders.
Precept—Upon the application of a decree-holder, the Court, which passes a decree, may issue a precept
to another Court to attach the judgment- debtor‟s property, when this course is convenient, provided
that the Court to which the precept is issued is competent to execute the decree (Section 46, Code of
Civil Procedure).
Where the Court for any reason, passes any order dismissing the application for execution of the
decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the
period up to which such attachment shall continue or the date on which such attachment shall cease
(Order 21, Rule 57).
The attachment automatically ceases where the Court for any reason has dismissed the application
for execution of the decree (and has omitted to give and discretion to that effect).

In the following circumstances, the attachment may be terminated:

(1) The attachment automatically ceases where the Court for any reason has dismissed the application for
execution of the decree (and has omitted to give and discretion to that effect).

(2) When all the costs and charges of the decretal amount are paid into the Court.

(3) Satisfaction of the decree is otherwise made through the Court or certified to the Court.

(4) The decree is set aside.

(4) On furnishing the required security by the J.D.

(6) By compromise between the parties.

(7) By an express order withdrawing or putting an end to the attachment.
(8) By sale of the attached property in execution of the decree.
(9) By abandonment of the attachment by the decree-holder.
 118

PRINCIPLES RELATING TO EXECUTION OF DECREE AND ORDER

Provision of CPC relating to execution of decree and order shall be made applicable to
both Appeal and Sue. A decree may be executed by the court which passed the judgment and decree
or by some other court which is having competency to implement the judgement passed by such other
court. The court which passed the decree may send it for execution to other court either on application
of the applicant (decree-holder) or by the court itself. A court may order for execution of decree on the
application of decree on the application of decree holder (a) by delivery of any property which was in
possession of judgment-debtor and decree has been specifically passed concerning such property (b)
by attachment and sell of the property of the judgment-debtor (c) by arrest and detention (civil
imprisonment) (d) by appointing a receiver (e) in such other manner which depends upon nature of relief
granted by the court. Upon the application of decree-holder, the court may issue “percept” to any other court
which is competent in that regard. All questions arising between the parties to the suit in the decree
shall be determined by the court while executing the decree and not by separate suit.
Where a decree is passed against a party as the “legal representative” of a deceased person
and decree is for payment of money out of the property of deceased person, it may be executed by
attachment and sell of any such property. A judgment-debtor may be arrested at any time and on any
date shall required to be brought before the court which has passed the decree and his detention may be in
civil prison of the district where decree shall have to be executed. Where immovable property has been
sold by the court in execution of a decree such sell shall be absolute. The property shall be deemed to be
invested in the favour of purchaser, and the purchaser shall be deemed as a party to litigation. The court to
which decree is sent for execution shall require certifying to the court which has passed decree stating the
manner in which decree has been implementing concerning the fact of such execution.
 119

ATTACHEMENT OF PROPERTY

A decree may also be executed on the application of the decree- holder by attachment and sale
only sale without attachment of property. The code recognizes the right of the decree-holder to attach the
property of the judgement debtor in execution proceeding and lays down the procedure to effect
attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the subject of attachment of
property. 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. The code also
declares that a private alienation of property after attachment is void.
Section 60(1) declares what properties are liable to attachment and sale in execution of a
decree, and what properties are exempt therefrom. All saleable property( movable or immovable) belonging
to the judgment- debtor or over which or the portion of which he has a disposing power which he may
exercise for his own benefit may be attached and sold in execution of a decree against him.
Section 61 deals where the judgement-debtor is agriculturalist. It state that
judgement-debtor is agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The
quantum of attachment of agricultural product depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property through different
decree, then it will be looked, that which court is superior. The value of the property will determine whether
further attachment can be done or not.
Section 46- “precept” means a command, an order, a writ or a warrant. A percept is an order
or direction given by court which passed the decree to a court which would be competent to execute the
decree to attach any property belonging to the judgement-debtor. Section 46 provides that court which
passed a decree may, upon an application by the decree-holder,
 120

issue a percept to that court within whose jurisdiction the property of the judgment-debtor is lying to attach
any property specified in the percept. A percept seeks to prevent alienation of property of the judgment-
debtor not located within the jurisdiction of the court which passed the decree so that interest of the
decree-holder is safeguarded and protected. It is interim attachment of the property which lies outside the
jurisdiction of court which has passed the order. To protect the interest of the decree holder on his
application will issue percept to the court in whose jurisdiction property is situated to attach the property of
the judgment-debtor. The interim order for attachment is valid for the period of only 2 months.
GARNISHEE ORDER

It is the proceeding by which the decree-holder seeks to reach money or property of the
judgement-debtor in the hands of a third party (debtor of judgment debtor). Suppose A owes Rs 1000
to B and B owes Rs 1000 to c. By a garnishee order, the court may require A not to pay money owed by
him to B, but instead to pay C, since B owes the said amount to C, who has obtained the order.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the
judgement-debtor because the latter is indebted to the garnisher.

SALE OF THE PROPERTY

A decree may be executed by attachment and sale or sale without attachment of any property.
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and
immovable property.

Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an attachment under
order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property. Officer will be the
representative of the court and will sell the property for execution of decree.

Proclamation of sale: Rule 66-67

 121

It is a kind of order or declaration. It operates as a public notice regarding the sale. It says that
people can participate in auction and sale. Proclamation can be in writing or by customary mode. The
contents of proclamation are 1) Time and place of sale; 2) Property to be sold; 3) Revenue, if any,
assessed upon the property; 4) Encumbrance, if any, to which property is liable; 5) Amount to be
recovered; 6) Details relating to property, such as title deed, length etc.
Time of sale: Rule 68

No sale without the consent in writing of the judgment-debtor can take place before fifteen days in
case of immovable property and before 7 days in case of movable property from the date of proclamation in
the courthouse. A sell can be conducted immediately if the property is of perishable nature.
Adjournment of sale: Rule 69

If the judgment-debtor after the issue of proclamation and before seller has paid the amount,
or has partly promised to pay on the given date before completion of public order, if there is any justified
reason, in those circumstances, court has discretionary power to postpone the salel. If it has been
postponed for period of 30 days, fresh proclamation has to be issued and again the process of Rule 67,
68 and 69 will follow. Salel cannot be postponed where judgment-debtor dies before the date of sell or after
the issue of proclamation, or on the date of auction.
Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the property sold in
execution of his own decree. A mortgagee of immovable property cannot, without the leave of the court,
purchase the property sold in execution of decree on the mortgage. Any officer or other person having any
duty to perform in connection with the execution sale cannot either directly or indirectly, acquire or any
attempt to acquire any interest in the property sold in execution.
Rule 78-79 talks about sale of movable property. Rules 74 and 75 relates to the sale of agricultural
produce and growing crops. Rule 76 covers negotiable instruments and shares. Sale of movable property
should be held
 122

by public auction. A sale of movable property will not be set aside on the ground of irregularity in publishing
or conducting the sale (Rule 78).
Rule 82-94 talks about sale of immovable property. Rule 83 enables the executing court to postpone
sale to enable the judgment debtor to raise decretal dues by private alienation. Rule 84-85 provide for
payment of purchase money by auction-purchaser. Rule 86 talks about cases of default by auction-
purchaser in making requisite payment and resale of property. Rule 89-91 and 93 deals with setting aside
sale and effect thereof. Rules 92- 94 provide confirmation of sale and issuance of sale-certificate. Section 65
declares the effect of sale.
CONCLUSION

From the above discussion it clearly appears that execution is the enforcement of decrees and orders by
the court, so as to enable the decree- holder to realise the fruits of the decree. The execution is complete
when the decree-holder gets money or other thing awarded to him by the judgement, decree or order. Order
21 of the code contains 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.
 123

Presented by : Sri P.Raju,

Prl. Junior Civil Judge, Tiruvuru.
UPSET PRICE

I. (a) Rule 277 of Andhra Pradesh Civil Rules of Practice and Circular Orders [ for short “ the
Rules”] defines as follows.
Sub-rule 1 of Rule 277 of the Rules provides for “leave to bid”. An application for leave
to bid at the sale, shall be supported by an affidavit setting forth any facts showing that and advantageous
sale cannot otherwise be had; and an undertaking shall be given by or on behalf of applicant, that, in
the event of his being declared the purchaser of the property, or of any lot or lots, he will give credit, or will
enter up satisfaction of the decree or order under which the sale is made, for the purchase of money.
Sub-rule 2 of Rule 277 of the Rules, provides that, in case, in which the court may consider that,
the applicant who wanted to file an application, for leave to bid should not be allowed for less than the
sum to be fixed, which would be competent to the court to give leave to bid at the sale, only on the
condition that the applicant's bid shall not be less than the amount so fixed by the court, which
amount, shall as far as practicable, be determined with reference to the probable market value of the
property, or of the lot or lots into which the property is divided for sale.
Rule 277 (2) of the Rules, thus, clearly shows that, when there is no petition by the Decree
Holder to bid, as enjoined in that Rule, Rule 227 (2) of the Rules is not applicable.
(b) Under the provisions of Rule 277 (2) of the Rules, the court could fix the upset price, only
when there is a petition by Decree Holder to bid. Excepting this, there is no other provision in the Code
of Civil Procedure [ for short “the Code”] to fix the upset price, as held in the case of Mudunuru

Raghunatharaju vs Kasim Khan And Ors[1]. AIR 1966 AP 152.

© Identical question had come up for consideration in the case of Sadatinaud Khan v. Phulkaur [2]
. (1898) ILK 20 All 412 before their Lordships of the Privy Council. But, this was a case under Clause
(e) of Section 287 of the old Code corresponding to Order XXI, Rule 66 of the present Code, and the
question related to the effect of under-statement of
 124

the value of the property. It was held that, an under-statement of the value was a material irregularity
in publishing and conducting the sale. Explaining the dictum of the Privy Council, the Hon’ble Judges,

in the case of Thirnvengada Swamy Vs. Govinda Swami[3], AIR 1928 Madras 503 expressed the view
that, the Court itself was under no obligation ,whatever, to fix in the proclamation of sale its own
valuation of the property to be sold. This opinion of the learned Judges has been statutorily accepted by
the insertion in 1936 of the new clause in Order XXI, Rule 66, Clause (e) to the effect that the
proclamation should contain the value of the property, as stated by the decree-holder and the
judgment-debtor, and it does not make it obligatory on the executing Court to embark upon an enquiry
regarding the value of the property and insert such value in the proclamation.

(d) Though, in the case of Gangayya v. Nalam Nukaraju[4], (1962) 2 Andhra L.T.,75, the Hon'ble
High Court of Judicature at Hyderabad, took a different view relying on Order XXI, Rule 66(2) (f) of the Code
and held that, the whole idea of fixing the upset price was to prevent the property being sold away for
a very small price and such fixation not only serves as a guidance to the intending purchaser but also serves
to prevent the properly from being knocked down in the auction for the price much below its market
value. Though in this case there is reference to Order XXI Rule 66(2)

(e) of the Code, yet reliance is not placed on the said rule and relying on Order XXI. "Rule 66(2) (f)
of the Code” held that the court had the power to fix the upset price. But, in the case of
Mudunuru Raghunatharaju vs Kasim Khan And Ors((1) supra), a Division Bench of the Hon’ble
High Court at Hyderabad, while disagreeing with the view taken in the case of Gangayya v. Nalam Nukaraju
((4) supra ), held that Order XXI , Rule 66
(2) (f) of the Code is a residuary clause and it cannot be intended to cover mailers other than the market
value, while relying on the judgment in the case of Sreenivasan vs Andhra Bank Ltd (5) AIR 1949
Madras, 398.

II. (a) At this stage, it is necessary to refer to Order XXI Rule 66 of the Code, as amended in the year
1936, which reads as follows:
 125

"66(1) Where any property is ordered to be sold by public auction in execution of a decree the Court shall
cause a proclamation of the intended sale to he (drawn up) in the language of such court.
2. Such proclamation shall be drawn up after notice to the decree-holder and judgment-debtor and shall state
the time and place of sale, and specify as accurately as possible:--
(a) the property to be sold;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest
in an estate or part of an estate paying revenue to the Government."
© xxxxxxxxxxxx (d)xxxxxxxxxxx
(e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment-debtor; and
(f) every other thing which the court considers material for a purchaser to know in order to judge of the
nature and value of the property."

(b) Before examining the scope and application of the clauses (e) and

(f) of Rule 66 of Order XXI of the Code one has to usefully refer to Rule 64 of Order XXI of the Code
also, in addition to Order XXI, Rule 66 (1) of the Code. Rule 64 of Order 21 of the Code reads as follows:

Rule 64 of Order 21 of the Code reads as follows:

“64. Power to Order property attached to be sold and proceeds to be paid to person entitled.- Any
court executing a decree may Order that any property attached by it and liable to sale, or such portion
thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a
sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

© Thus, Order XXI, Rule 64 of the Code empowers the executing court to order any property
attached by it to be sold and provides for the payment of the sale proceeds to the person entitled to the
same. Order XXI, Rule 66 (1) of the Code, enjoins the court to make a proclamation of the intended sale in
the language of such court. Sub-rule (2) of Rule 66 of Order XXI of the Code prescribes the
procedure to be followed in making such proclamation. According to Rule 66 (2) of Order XXI of the
Code, the sale proclamation shall state the time and place of sale and specify as
 126

accurately as possible, the particulars mentioned in clauses (a) to (f) thereof. The proclamation shall be
drawn up only after notice to the decree-holders and the judgment debtor. It is well settled that any
material irregularity in the publication or conduct of sale resulting in substantial injury to the judgment
debtor would vitiate the sale, and such a sale is liable to be set aside under Order 21, Rule 90 of Code.
The very intendment and object of furnishing the particulars specified in clauses (a) to (f) of sub-rule (2) to
Rule
66 of Order XXI of the Code is to afford a fair opportunity and provide a guide for the intending
purchasers to assess the true and real market value of the properties sought to be sold and to enable
them to offer a fair, proper and reasonable price. That apart, the judgment debtor-s interest would be amply
safeguarded as it would be to his advantage to get a fair and reasonable price for the property put up for
sale.

(d) (i) Clause (e) of sub-rule (2) of Rule 66 of Order XXI of the Code was not there before
1936. To give effect to the decision of the Division Bench of the Hon'ble Madras High Court , in
Thiruvengadasami Ayyangar
v. Govindaswami Udayar( (3) Supra ) an amendment inserting clause (e) of sub-rule (2) of Rule 66
of Order XXI of the Code, in sofar as it is applicable to Madras, had been made in the year 1936.
This amendment has been adopted by the State of Andhra Pradesh. Therefore, it is applicable to the
State of Andhra Pradesh. Under clause (e) of sub-rule 2 of Rule 66 of Order XXI of the Code, the value of
the property, according to the judgment- debtor and decree-holder alone has to be given in the sale
proclamation. The framers of the Code did not specifically make it obligatory on the part of the court to
furnish its valuation in the sale proclamation. The omission in clause (e) of sub-rule 2 of Rule 66 of
Order XXI of the Code, of the words “value given by the court” makes it abundantly clear that the court has
no statutory duty or obligation to furnish the same. That apart, it is also not possible for the court it
give approximate value of the property sought to be sold by it. The information given by the judgment-
debtor and the decree- holder would afford an opportunity to the intending purchasers to assess the
true nature and value of the property. Normally the judgment-debtor may try to inflate the value of
the properties and the decree-holders, on the
 127

other hand, may try to give the value of the properties to be very much less than the real price. The
intending purchasers have to bear in mind the aforesaid facts and circumstances and estimate the real
and true market value of the properties and make their bids.

(ii) Clause (f) of sub-rule (2) of Rule 66 of Order XXI of the Code, is a residuary provision and the
provisions of it must be read in the light of the other clauses. The use of the words ' every other thing which
the court considers material for a purchaser to know' in clause (f) of sub-rule (2) of Rule 66 of Order
XXI of the Code indicates that 'every other thing' is not inclusive of the very value of the property. On a
careful reading of this clause, the expression 'every other thing' means every other matter or information
other than the matter or information specified in clause (e) of sub-rule (2) of Order XXI of the Code, which
would provide a guide for the intending purchaser to assess the true nature and correct value of the
property. If the framers of the Code intended the court to give in the sale proclamation its own value, in
addition to the values stated by the decree- holder and judgment-debtor, clause (e) of sub-rule (2) of
Rule 66 of Order
XXI of the Code would have made a specific mention of the same. That apart, as stated earlier, it is
neither practicable nor possible for the court, without an enquiry to give its own value of the property. Thus,
in the circumstances, the expression 'every other thing' in clause (f) of sub-rule (2) of Rule 66 of Order
XXI of the Code should not be construed to take the value of the property as determined by the
executing court. The very object and intendment of the furnishing of the particulars, that is, the value of the
property as stated by the decree-holder and the judgment-debtor and every other thing which is material,
is only to facilitate the intending purchasers in assessing the correct value and true nature of the
property. If the value of the property is given by the executing court, all the aforesaid material is really
redundant. In order to arrive at the true nature and value of the property, the information and particulars
specified in clauses (e) and (f) of sub-rule (2) of Rule 66 of Order XXI of the Code are required. This
residuary clause (f) of sub-rule (2) of Rule 66 of Order XXI of the Code is ,therefore, intended to cover all
matters and other than the market value of the
 128

property sought to be sold. Clause (f) of sub-rule (2) of Rule 66 of Order XXI of the Code, is not
susceptible of any interpretation other than the one indicated above.

(iii) (1) In the case of Srinivasan v. Andhra Bank ( (5) supra ), while explaining the dictum of
the Privy Council in Saadatmand Khan v. Phul Kuar (6) ( 1898) L.R. 25 I.A. 146 : I.L.R. 20 All.
412 (P.C.), in the case
of Thiruvengadasami Aiyangar v. Govindasami Udayar ( (3) Supra ) it is expressed that the view that the
Court itself is under no obligation to fix in the proclamation of sale its own valuation of the property to be
sold. This decision considers not only the Privy Council judgment in the case of Saadatmand Khan v. Phul
Kuar, ( (6) supra) but other cases of various High Courts as well. The opinion of the learned Judges in the
case of Thiruvengadasami Aiyangar v. Govindasami Udayar ( (3) supra ) has been statutorily accepted by
the insertion in 1936 of a new clause in Order 21 Rule 66(2)(e) of the Code to the effect that the
proclamation should contain the value of the property as stated by the decree-holder and the judgment-
debtor.

(2) In so far as one of the necessary requisites of a sale proclamation, that is, the value of the
property is concerned, there is a specific clause regarding what the proclamation should contain and
that is Clause (e) of sub-rule (2) of Rule 66 of Order 21 of the Code. Clause (f) of sub-rule (2) of Rule 66 of
Order 21 of the Code cannot be reasonably construed as including within its ambit any statement about
the Court's view about the market value. By enacting the new Clause (e) in the said Rule of Order 21 of the
Code, it should be deemed that the residuary Clause (f) in the said Rule of 21 of the Code is intended to
cover matters other than the market value. This does not prevent the Court, if it thinks necessary, from
including the market value as decided by it. The Hon’ble Privy Council decisions did not makes it obligatory
upon the executing Court to embark upon an enquiry regarding the value of the property and insert
such value in the proclamation. In fact the Hon’ble Lahore High Court had amended Order 21, Rule
66 of the Code by adding a sub-clause that it shall not be
 129

necessary for the Court to give its own estimate of the value of the property. Our own amendment also by
implication means the same.

(3) Moreover, in settling a sale proclamation, the Court is ordinarily functioning in its
administrative capacity except where a final decision regarding the rights of the parties is given.

(iv) (1) In the case of Edara Pattabi Srirama vs Thadikammal Veerabhadra Appala (7) AIR
1973 AP 24, it is held that that it is not obligatory on the part of the executing court to make a regular
enquiry about the market value of the property and furnish the same in the sale proclamation. Reference,
in this regard, is made to Rule 277 ( old Rule 199) of the Rules, which would throw some light on this
aspect of the same. Rule 27
7 of the Rules provides for an application for leave to bid at the sale to be filed by any decree holder
who intends to take part in the court auction. Sub-rule (2) of Rule 277 of the Rules, thereof enjoins the
executing court to fix the minimum price for which the decree-holder can bid provided leave is granted
to him. The intendment of the aforesaid rule is to prevent the decree holder from knocking away the
property for a low price. There may be cases where third party bidders for reasons best known to them
are not forthcoming,. There is every danger in such cases of the property being purchased by the decree
holder himself for a low price. The court, in such cases, has a duty to protect the interest of the
judgment debtor. If the framers of the code had intended that the executing court shall fix the upset
price ,after assessing the true market value of the property sought to be sold, clauses (e) and (f) of sub
rule (2) of Rule 66 of the Order 21 of the Code would have been differently and suitably worded. Judged
from any angle, the executing court is not bound to fix an upset price when there is a wide disparity
between the values given by the judgment debtor and the decree- holder for stating the sale
proclamation.

(2) However, the court is not prevented in approximate cases from indicating the approximate
value of the property. In other words, there is no prohibition for the executing court, if it thinks it just,
proper and necessary, from including the market value of the property on the basis of the material
 130

available to it. ( Sreenivasan vs Andhra Bank Ltd ( (5) supra ). Where there is a very wide disparity in
the values given by the judgment-debtor and the decree-holder, it is not only desirable but fair and proper
for the executing court to ascertain either through a commissioner or an Amin the approximate value
of the property and incorporate the same in the sale proclamation. Such procedure would undoubtedly afford a
safe guide for the intending purchasers to make up their minds in estimating the true nature and value of
the properties.

(3) Thus, the provisions of clauses (e) and (f) of sub-rule 2 to Rule 66 of Order 21 of the Code
do not require the court to fix an upset price. Nor is the court empowered to fix the amounts indicated
by the decree holder and the judgment debtor as the upset prices. The practice of fixing two upset
prices by the court is not permissible under the provisions of the Code, apart from its being unworkable
and leading to anomalies. It must be deprecated. What the court has to do is to mention both the values
furnished by the judgment debtor and a decree holder in the sale proclamation, without fixing any
upset price. ( C.R.P. No., 784/1950; C.R.P. No., 1382/56 dated 7.2.1957 of the Hon’ble Madras High
court and also Kuppammal v. Devendra Iyer (8) (1957) 2 Mad LJ 134.

(v) (a) In the case of Gajadhar Prasad & Ors vs Babu Bhakta Ratan & Ors, (9)AIR
1974 SC 2593 , the Hon'ble Apex Court of India, held that there have been amendments of Order 21,
Rule 66 of the Code by different Hon'ble High Courts from 1929 onwards dealing with the question of
valuation. The Hon'ble Calcutta and the Punjab High Courts have made it clear that it shall not be
necessary for the Court itself to give its own estimate of the value of the property but the proclamation shall
include the estimate, if any, given by either or both the parties. In Andhra Pradesh, Order 21 Rule 66(2)
(e) of the Code has been amended to make it obligatory to give the value of the property as stated : (i) by
the decree-holder; (ii) by the judgment-debtor.
(b) A review of the authorities as well as the amendments to Rule 66(2)

(e) of Order 21 of the Code makes it abundantly clear that the Court, when stating the estimated value
of the property to be sold, must not accept
 131

merely the ipse dixit of one side. It is certainly not necessary for, it to state its own estimate. If this
were required, it may, to be fair, necessitate insertion of something like a summary of a judicially
considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be
quite misleading if the Court's estimate is erroneous. Moreover, Rule 66(2) (e) of Order 21 of the Code
requires the Court to state only the facts it considers material for a purchaser to judge the value and
nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But,
essential facts which have a bearing on the very material question of value of the property and which would
assist the purchaser in forming his own opinion must be stated That is, after all, the whole object of Order
21, Rule 66(2) (e) of the Code. The Court has only to decide what all these material particulars are in each
case. Thus, this is an obligation imposed by Rule 66 (2) of Order 21 of the Code.
© In discharging it, the Court should normally state the valuation given by both the decree-
holder as well as the judgment debtor where they have both valued the property, and these do not appear
fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it,
municipal assessment, actual rents realised, which could reasonably be expected to affect valuation.
What could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on
the facts of each particular case. Inflexible rules are not desirable on such a question.

III. (i) Order XXI, Rule 62(2) (e) proviso is introduced by Amendment Act 1976 to the Code, which read
as follows: -
66. Proclamation of sales by public auction: (1) where any property is ordered to be sold by public
auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the
language of such court.

(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor
and shall state the time and place of sale, and specify as fairly and accurately as possible:-

(a) the property to be sold [or, where a part of the property would be sufficient to satisfy the decree, such
part];
 132

(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest
in an estate or in part of an estate paying revenue to the Government;

(c) any encumbrance to which the property is liable,

(d) the amount for the recovery of which the sale is ordered, and

(e) every other thing which the court considers material for a purchaser to know in order to judge of the
nature and value of the property:

[Provided that where notice of the date for settling the terms of the proclamation has been given to the
judgment-debtor by means of an order under Rule 54, it shall not be necessary to give notice under this rule
to the judgment-debtor unless the court otherwise directs:

Provided further that nothing in this rule shall be construed as requiring the court to enter in the
proclamation of sale its own estimate of the value of the property, but the proclamation shall include the
estimate, if any, given, by either or both of the parties].

(3) Every application for an order for sale under this rule shall be accompanied by a statement signed
and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and
containing, so far as they are known to or can be ascertained by the person making the verification, the
matters required by sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may
summon any person whom it thinks necessary to summon and may examine him in respect to any
such matters and require him to produce any document in his possession or power relating thereto.

(ii) InP.S. Chenoy v. H. Satyanarayan Sastri and Ors. (10)1976( 1) APLJ 57 (NRC), (C.M.A.
No. 104/74 dated 7.6.1976) the Hon'ble Division Bench held that non-inclusion of the value given by
the judgment-debtor which was ordered to be included in the sale proclamation by the Executing Court
is definitely a material irregularity in publishing and conducting the sale. In the case ofPothyreddy
Somanandarao and Ors. v. Sareppalli Veerabhadrayya and Ors., (11)1959 ALT 436, it is
observed by the
 133

Hon'ble High Court of Andhra Pradesh that under Section 47 of the Code, if there is total absence
of proclamation, the authorities are clear that it is an illegality bringing the case within the purview of
Section 47 of the Code, but if there was only a defect in the proclamation it was only an irregularity falling
within the ambit of Order 21 Rule 90 of the Code.
Section 47 of the Code - Questions to be determined by the Court executing decree— (1) All
questions arising between the parties to the suit in which the decree was passed, or their representatives,
and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court
executing the decree and not by a separate suit.
[2]xxxxxx
(3) Where a question arises as to whether any person is or is not the representative of a party, such
question shall, for the purposes of this section, be determined by the Court.
[Explanation I.—For the purposes of this section, a plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.—(a) For the purposes of this section, a purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the
decree within the meaning of this section.] Limit of time for execution.

(iii) In V.V. Narayana Chetty v. N. Dhanamma and Anr.,(12)AAO No. 707/ 79 dated
15.2.1982, it is held that when the proclamation of sale did not mention the judgment-debtor's
valuation and, therefore, that being a mandatory requirement, the sale is illegal. The judgment in the
case of M.P. Narisireddy v. M. Venkayya,(13)1977(1) A.P.L.J. 43 was a decision rendered by the
Hon'ble High Court of Judicature at Hyderabad with reference to Clause (e) of Sub-rule (2) of Rule 66 of
Order XXI of the Code, as it stood in Andhra Pradesh prior to the amendment of the Code by Civil
Procedure Code AmendmentAct (Act 104/76). Prior to the said amendment, Clause (e) of sub-rule (2) of
Rule 66 of Order XXI of the Code required that the proclamation should specify as accurately as possible
inter alia the value of the property as stated by the decree-holder and by the judgment-
 134

debtor. But this Clause (e) does not survive the 1976 Amendment. The amended of sub-rule (2) of Rule
66 of Order XXI of the Code does not require that the proclamation should state the value as given by
the judgment-debtor. Clause (e) of the present sub-rule (2) of Order XXI of the Code states that the
proclamation should state every other thing which the Court thinks material for a purchaser, to know in
order to judge of the nature and value of the property. Indeed the second proviso to Rule 66 of Order XXI
of the Code, introduced by the Amendment Act reads as follows:-
“Provided further that nothing in this rule shall be construed as requiring the Court to enter in
the proclamation of sale its own estimate of the value of the property, but the proclamation shall include
the estimate, if any, given by either or both of the parties”.
Thus this proviso shows that it is not necessary for the Court to mention its own valuation in the
proclamation, but if any value is given by either or both of the parties, it should find a place therein.

(iv) In E.P. Srirama v. T. V.A. China Rajanna, ((7) supra)a Division Bench of the Hon'ble High
Court of Judicature at Hyderabad held that the Executing Court is not bound to fix and incorporate in the
sale proclamation the upset price when there is disparity between the values given by the judgment-debtor
and the decree-holder, though it would be appropriate to give the approximate value in the proclamation
after ascertaining it through a Commissioner or an Amin.

(v) In M. Veeranjaneyulu vs M. Saraswathamma (15) AIR 2004 AP 27, while referring to

the provisions of Clause (e) of Rule 66 of Order XXI of the Code, it is held that the amendment to Order XXI
of Rule 66 of the Code indicates that the price should be fixed by the Court as estimated by the decree-
holder and also the judgment-debtor. In other words, the estimation of both the decree-holder and the
judgment-debtor shall be indicated to the prospective purchaser. The Court cannot estimate on its own,
particularly, fixing the price as estimated by the decree-holder. It may put the judgment- debtor in a
disadvantageous position. Normally, when the property was estimated at a particular price, the purchaser ,
depending upon his need, capacity and the willingness, may estimate the value of the property,
 135

brought to sale, on his own. Therefore, the best Judge to estimate the value of the property is the
prospective purchaser. It is not desirable for the Courts to arrive at a particular figure on its own,
particularly, as quoted by the decree-holder, which is a figure on the much lower side than the figure
quoted by the judgment-debtor. Therefore, it is always desirable for the Courts to indicate the nature of the
properly including the surroundings etcetera and also indicating the rates quoted by the judgment-
debtor and the decree-holder and leave the rest to the purchaser.

(vi) While referring to the judgment in case of Edara Pattabi Srirama vs Thadikammal
Veerabhadra Appala, ( (7) supra ) and Rule
277 of the Rules, it is held, in the case of E. Sahadeva Reddy vs Djp Finance And Chits And Ors.
(16) AIR 2006 AP 232, 2006 (3) ALD 742, that clauses (e) and (f) of Rule 66(2) of Order XXI of Code
do not require the Court fixing upset price, and that the Court is also not empowered to fix any of the
amounts indicated either by the decree-holder or the judgment-debtor as the upset prices, and in fact
deprecated the practice of fixing the upset price by the Court and held that the prices mentioned by the
judgment- debtor and decree holder have to be mentioned in the sale proclamation. Therefore, the question
of the executing Court fixing upset price does not arise and Rule 277 of the Rules is relating to the
terms being imposed on the decree-holder, if and when he seeks permission to participate in the bid.
Therefore, except in such circumstance, Rule 277 of the Rules has no relevance for disposal of the case
because the decree-holder did not file any application seeking leave of the court to participate in the
auction.

(vii) No doubt, there is a ruling of the Hon'ble Apex Court of India, in the case of AIR 1997
SC 938,which says that, court must fix upset price, but it was rendered while interpreting the rules
framed by the Hon'ble High Court of Madras, which has no application in the State of Andhra Pradesh.

(viii) Only when a Mortgagee wants to participate in the bid, the court has to fix a minimum
reserve price below which he shall not bid as per Rule 72-A of Order XXI of the Code. This is not an upset
price, as third party bidders are not bound by it. It must be borne in mind that the executing court
has no power to secure any fair market price for the property, unlike a
 136

Tribunal under the Land Acquisition Act. The Court can only arrange for the auction in public by following
some minimum procedure safeguards to take care of the interests of the judgment-debtor, bonafide bidders
and rival creditors. Thus, the price that is obtained in the court hall itself is the market price, as the
court hall itself is a market. If the judgment-debtor is serious about securing a proper price, he can
always resort to Order XXI, Rule 83 of the Code to sell the property privately by negotiations by seeking
permission of the court, notwithstanding the attachment. If the judgment- debtor remains ex parte, the court
may at best adjourn the sale by not accepting the highest bid to try to secure a higher price. Thus, fixing
upset price or declining permission for decree-holder to bid will not help the cause of justice, in any
way.

IV. Thus, the cumulative of the aforesaid judgments, it is clear that the practice of fixing upset price by
the court is deprecated as it is unworkable and lead to anomalies.