GENERAL PROCEDURE FOR SALE OF ATTACHED PROPERTY UNDER C.P.

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

THE FOLLOWING COURTS COME UNDER THE PURVIEW OF SECTION 37:

1. The court of first instance which actually passed the decree;

2. The court of first instance in case of appellate decrees;
3. Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution; and
4. Where the court of first instance has ceased to have jurisdiction to execute the decree,
the court which at the time of execution would have had jurisdiction to try the suit.
5. Even though primarily the decree will be executed by the court which passed it, it can
also be executed by another court suo moto or on the application of decree holder. For
commencing execution proceedings the decree-holder, or legal representative of the
decree-holder (if the decree-holder is dead), or representative of decree-holder, or any
person claiming under the decree holder, or the transferee of the decree-holder (on
satisfaction of certain conditions) should file an application to the court which passed
the decree or to the court where it has been transferred to.

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

The mode of procedure for attachment of immovable property starts with

 Issuing a prohibitory order to the judgment debtor and to the public generally, this
order will stop the judgment-debtor from transferring the property or charging it. The
judgment debtor shall attend the court on the date prescribed for deciding the terms of
proclamation of sale.
 The warrant and the prohibitory orders along with the copies shall be submitted to the
Nazir. The Nazir will endorse the warrant and return it within specified time before
the Court. Where any person deputed by the Nazir completed the above work of
attachment of property, a separate document stating the manner in which, the day and
hour at which he did such act has to be attached.
 The court should make sure that all the requirements or formalities for a legal
attachment have been complied with in order to prevent any sort of material
irregularity as it might cause serious trouble and loss to the parties. The civil courts
should also apply proper care and caution in the process of service of warrants of
attachment before they take any action with respect to the property.
 When the property to be attached is movable property which is not an agricultural
produce, then the attaching officer can seize the property and keep it in his custody.
But if the property seized is of perishable nature or the cost of keeping it is likely to
exceed its value the attaching officer can sell it immediately. If the attachment officer
fails to sell such property, he can at the instance of judgment-debtor or decree-holder
or anyone interested in such property leave it in the custody of a respectable person in
the village or place where it has been attached. The custodian will later be liable for
the inability to produce such property before the court, or for any loss or damage
caused to it.
 In Krishnamukhlal v.Bhawan it was held that even if the attachment of agricultural
lands is irregular or invalid for want of non-publication in the office of the collector
as required by O.21, R.54, C.P.C, it would not prevent the court from proceeding
further with the sale of the properties, because, the law does not say that an
immovable property cannot be sold in execution of a decree without first attaching it.
 Share or interest in movables is the property to be attached, a notice will be forwarded
to the judgment-debtor prohibiting him from transferring or charging the same.
 Furthermore, the attachment of salary of government or railway authority servants can
be done by withholding it subject to section 60 of CPC. A partnership property cannot
be attached in execution of a decree. Such an attachment would be allowed only in a
situation where the decree is passed against the firm or the partners. If the decree-
holder makes an application against the partner, the court can issue an order and
appoint a receiver to ascertain the partners share in the profit or any amount he has to
receive and further make a sale. Where the decree is against the partnership firm, the
partnership property can be attached.
 Where the property to be attached is a negotiable interest which is not within the
custody of public officer, or deposited in the court, the process of attachment can be
carried out through actual seizure. Where any property to be attached is within the
custody of court or public officer, a notice will be served to them stating that such
property should be held subject to further orders of the court. In a case where the
property attached is a current coin or currency notes, the court can direct such items to
be handed over to the decree-holder in satisfaction of his claim

CONCLUSION:

The procedure of sale of property is both stringent and exhaustive and may mold in each
circumstance. Not only the procedural aspect as to proclamation must be property followed
by the court but also the obligation which the court adheres as to default of purchaser must
also be fulfilled. The decree holder is provided a remedy for his aggrieved case and the
defaulter is called upon by court to deal with his default. The most peculiar feature of the
auction of such property for recovery of sums is that decree holder is not allowed to
participate in bidding or purchase of such property in a decree unless prior permission of the
executing court is given whereas such provision is rather stringent for officers of court
wherein they are completely restricted from participation in biding and purchase of the
property so auctioned.