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PAPER PRESENTATION ON ATTACHMENT OF PROPERTY IN

EXECUTION

By Smt.C.Janaki
II Addl. J.M.F.C.
PRODDATUR
Execution is the most important aspect of Civil justice. Success or
failure of system of Civil justice depends on success in executing
decrees of Civil Courts.
A decree may also be executed on the application of the decree-
holder by attachment and sale without attachment of property. The
Code recognizes the right of the decree-holder to attach the property of
the judgment-debtor in execution proceedings and lays down the
procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of
Order 21 deal with the subject of attachment of property. The Code
enumerates properties which are liable to be attached and sold in
execution of a decree. Likewise, 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.
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 the judgment-debtor is not material.
OBJECT:
The primary object of attachment of property is to give notice to
the judgment-debtor not to alienate the property to anyone as also to
the general public not to purchase or in any other manner deal with the
property of the judgment-debtor attached in execution proceedings. At
the same time, it protects a judgment-debtor by granting exemption to
certain properties from attachment and sale.
PROPERTY WHICH CAN BE ATTACHED:
Section 60(1) declares what properties are liable to attachment
and sale in execution of a decree, and what properties are exempt there
from.
All saleable property (movable or immovable) belonging to the
judgment-debtor or ever which or the portion of which he has a
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disposing power which he may exercise for his own benefit may be
attached and sold in execution of a decree against him. The section is
not exhaustive. Specific non-inclusion of a particular species of property
under Section 60 is, therefore, not of any consequence if it is saleable
otherwise.
PROPERTY WHICH CANNOT BE ATTACHED:
SECTIONS 60 AND 61

The proviso to sub-section (1) of Section 60 declares that the

properties specified therein are exempted from attachment and sale in
the execution of a decree.
In RAGHAVARAPU NAGESWARA RAO Vs TENNETI VENKATA
LAKSHMINARAYANA 1997(6) ALT 762, it was held that salary under
attachment in execution of one and the same decree for a continuous
period of 24 months is finally exempted from attachment thereafter in
execution of the very same decree.
In ASHUTHOSH Vs STATE OF RAJASTHAN & OTHERS 2005
(6) SCJ 647, it was held that a partner is always liable for partnership
debt unless there is implied or express restriction.
There was a conflict of judicial opinion as to whether a judgment-
debtor can waive the benefit conferred on him by the proviso. One view
was that since it was intended for the benefit of the judgment-debtor he
can waive it. Another view was that it was based on public policy and,
therefore, cannot be waived by him.
Now it is clarified that any agreement to waive the benefit of any
exemption under Section 60 shall be void. Section 61 empowers the
State Government to exempt agricultural produce from attachment or
sale. This provision is intended to enable an agriculturist to continue
agricultural operations even after execution of a decree.
Execution against the Agriculturist

Before ordering attachment in livestock, the D.H. should be asked

to deposit sufficient sum for removal of property to Court premises or
other place as the Court may direct and also for its maintenance and
guarding.
When growing crop is attached warrant of attachment should be
affixed on the land where the crop is growing, or if the crop has been
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cut or gathered, on the threshing floor, on the house in which the J.Dr
resides, and shall also be sent to the Collector. Order for attachment of
crop should specify the time at which the crop is likely to be fit to be cut
or gathered.
All objections to attachment, including questions of right, title and
interest in the property attached, have to be decided by executing Court
and not by a separate suit.
Garnishee order :

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. A garnishee order is an order passed by a Court
ordering a garnishee not to pay money to the judgment-debtor because
the latter is indebted to the garnisher.
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 a suit. Garnishee proceeding is a
process of enforcing a money judgment by the seizure or attachment of
debts to accruing due to the judgment-debtor which found part of his
property available in execution. Before using attachment, the Court may
issue notice to garnishee. Such notice calls upon garnishee to pay the
amount to satisfy the decree or to show cause why he should not do so.
If garnishee makes payment in the Court, it will amount to valid
discharge of his debts. A garnishee has right to show cause why such
debts is not payable or why he should not be called upon to make the
payment in the Court. If the garnishee disputes the liability, it shall be
decided as if it were and issue in a suit and upon determination of such
issue, the Court can make order as deemed fit.
Rule 48 relates to attachment of salary and allowances of servants
of government or local authority. The amendment seeks to cover also
the employees of corporations engaged in trade or industry and
established by statute or government companies so as to place them on
the same footing as government servants.
Rule 48-A provides the procedure for the attachment of salary and
allowances of the employees employed by private employers.
Rules 43 to 54 of Order 21 lay down the procedure for attachment
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of different types of movable and immovable properties. These

provisions may be explained by the following chart:

MODES OF ATTACHMENT: SECTION 62, ORDER 21 RULES 43-54

Type of Property Mode of Attachment

1. Movable property (other than – By actual seizure thereof. But if

agricultural produce) in possession such property is perishable, or the
of the judgment-debtor; expense of keeping it is likely to
exceed its value, it may be sold.

2. Movable property consisting of – By leaving the same in the

Live stock, agricultural implements custody of a respectable person
or other articles which cannot as the custodian.
conveniently be attached;

3. Movable property not in possession – By an order prohibiting the

of the judgment-debtor; person in possession thereof from
giving it to the judgment-debtor.

4. Negotiable instrument neither – By actual seizure and bringing it

deposited in a court nor in the into court.
custody of a public officer;

5. Debt not secured by a negotiable – By an order prohibiting the

instrument; creditor from recovering the
debt
and the debtor from paying the
debt.

6. Share in the capital of a – By an order prohibiting the

Corporation; person in whose name the share
stands from transferring it or
receiving dividend thereon.

7. Share or interest in movable – By a notice to the judgment-

property belonging to the debtor prohibiting him from
judgment-debtor and another transferring or charging it.
as co-owners;

8. Salary or allowance of a public – By an order that the amount shall

servant or a private employee; (subject to provisions of Sec.60),
be withheld from such salary or
allowances either in one payment
or by monthly installments.

9. Partnership property; – By making an order:

(a) charging the interest of the
partner in the partnership
property;
(b) appointing a receiver of the
share of the partner in profits;
(c) directing accounts and
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inquiries; and
(d) ordering sale of such interests.

10.(i) Decree for payment of money

or sale in enforcement of a
mortgage or charge--
(a) passed by the court – By an order of such court.
executing the decree;
(b) passed by another court; – By issuing a notice to such court
requesting it to stay execution
thereof.

(ii) Decree other than that – By issuing a notice (a) to the

mentioned above; decree-holder prohibiting him
from transferring or charging it
in any way; (b) to the executing
court from executing it until
such notice is cancelled.

11. Agricultural produce; – By (i) affixing a copy of the

warrant (a) in case of growing crop,

on land on which such crop has
grown; and (b) in case of ready
crop, the place at which it is lying;
and (ii) also by affixing a copy on
the house in which the judgment-
debtor ordinarily resides, carries on
business or personally works for
gain, or last resided, carried on
business or personally worked for
gain.

– Where application is for the

attachment of growing crop, it
shall specify the time at which
is likely to be harvested. (The
object is to enable the court to
make necessary arrangements for
the custody of the crop.)

12. Immovable property; – By an order prohibiting the

judgment- debtor from transferring
or charging it in any manner and
all persons from taking any benefit
from such transfer or charge.

No dwelling house may be entered after sunset and before

sunrise. No outer door of it may be broken open, unless it is in the
occupancy of the judgment-debtor and he refuses or prevents access
thereto. Where a dwelling house is in actual occupation of a
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pardanashan Woman, reasonable time and facility must be given to her

to withdraw.
Section 63 prescribes procedure to be followed in case the property is
attached in execution of decrees by several courts.
63. Property attached in execution of decrees of several
Courts:-
(1) Where property not in the custody of any Court in 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 susch 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 purpose of sub-section (2). “proceeding
taken by a Court” does not include an order allowing, to a decree-holder
who has purchased property at a sale held in execution of a decree, set
off to the extent of the purchase price payable by him.]

DETERMINATION OF ATTACHMENT: RULES 55-58

An attachment under the Code will be determined in the following

circumstances:
(i) Where the decretal amount is paid or the decree is otherwise
satisfied;
(ii) Where the decree is reversed, or is set aside;
(iii) Where the court upholds objection against the attachment and
makes an order releasing the property;
(iv) Where after the attachment the application for execution is
dismissed;
(v) Where the attaching creditor withdraws attachment;
(vi) Where the decree-holder fails to do what he is bound to do under
the decree;
(vii) Where the attachment is ordered before judgment and the
defendant furnishes the necessary security;
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(viii) Where there is agreement or compromise between the parties;

(ix) Where the attaching creditor abandons the attachment.

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT:

SECTION 64
A “private transfer” means a voluntary transfer such as sale,
mortgage, lease, gift, etc., and not a transfer by operation of law such
as sale under a decree passed by a competent court.
Section 64(1) enacts that a private alienation of property after
attachment is void as against claims enforceable under the attachment.
The alienation, however, is not absolutely void against all the world, but
is void against the claims enforceable under the attachment.
Sub-section (2) of Section 64, as inserted by the Code of Civil
Procedure (Amendment) Act, 2002 clarifies that the section will not
apply to a transfer of property in pursuance of a contract entered into
and registered before the attachment.
The primary object of this provision is to prevent fraud on decree-
holders and to keep the rights of attaching creditors and of those
creditors who have obtained decrees and are entitled to satisfaction out
of the assets of the judgment-debtor. It is, therefore, immaterial for the
application of Section 64 whether the decree had or had not been
passed before the time when the transfer was effected or whether the
transferee acted in good faith or not. But if the sale deed was executed
prior to attachment before judgment, it can be registered subsequently
and will prevail over attachment.
The provision interferes with the rights of the owner in alienating
his property and, hence, it should be construed strictly. Again, as the
provision is for the benefit of attaching creditor, he can waive the
benefit.
Finally a private transfer in contravention of Section 64 is not
wholly void against all the world but is void only against claims
enforceable under the attachment and only to the extent necessary to
meet those claims.