UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

CODE OF CIVIL PROCEDURE

PROJECT ON

ATTACHMENT AS A MODE OF
EXECUTION OF DECREE

SUBMITTED TO: SUBMITTED BY:

DR. KARAN JAWANDA SRISHTI SHARMA

168/19

B.A. LL. B (HONS)

8TH SEMESTER

SECTION C

1
 ACKNOWLEDGEMENT

I would like to express my sincere gratitude to my Evidence subject teacher, Prof. Dr. Karan
Jawanda, for her guidance and inspiritment throughout the course of this project. I’m also
grateful to Prof. Rajinder Kaur, Director, UILS, for providing me a great platform and giving
me this opportunity. I’m also indebted to my family and friends for their constant succor and
support. At last I express my gratitude to the library staff, who have helped me in this project
directly or indirectly.

Thank you

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 INDEX

TOPIC PAGE NO

TABLE OF CASES...................................................................................................................3

INTRODUCTION......................................................................................................................4

NATURE AND SCOPE.............................................................................................................4

OBJECT OF ATTACHMENT...................................................................................................5

PROPERTIES WHICH CAN BE ATTACHED........................................................................5

PROPERTIES WHICH CANNOT BE ATTACHED...............................................................5

MODES OF ATTACHMENT...................................................................................................7

PRECEPTS.................................................................................................................................9

LIMITATIONS TO PRECEPT................................................................................................10

GARNISHEE ORDER.............................................................................................................10

EFFECTS OF ATTACHMENT...............................................................................................13

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT..................................13

CONCLUSION........................................................................................................................14

BIBLIOGRAPHY....................................................................................................................15

3
 TABLE OF CASES

Chimandas v. Mahadevappa Firm, AIR 1961 AP 417…........................................................10

Gurdial Singh v. Khazan Chand, AIR 1936 Lah 486...............................................................10

M.A.A. Raoof v. KG Lakshmipathi, AIR 1969 Mad 268..........................................................4

Mahadeo Prasad v. Ram Lochan, (1980) 4 SCC 354.................................................................4

Mela Mal v. Bishan Das, AIR 1931 Lah 723….......................................................................10

Pradyut Shah AIR 1979 Bom 166............................................................................................14

Rai Kissenji v. Sri Kissen, AIR 1940 Cal 26...........................................................................10

Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693...............................................14

State of Punjab v. Dina Nath (1984) 1 SCC 137.......................................................................5

Subbarao v. Official Receiver AIR 1965 A.P. 52....................................................................13

Surinder Nath v. Union of India 1988 Supp SCC 626….........................................................11

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INTRODUCTION

The Code lays down various modes of execution of decrees. After the decree-holder
files an application for execution of a decree, the executing Court can enforce execution. The
substantive provision as provided under Section 51 “merely enumerates different modes of
execution in general terms, while the conditions and limitations under which alone the
respective modes can be availed of are prescribed further by different provisions”.1

A decree may be enforced by delivery of any property specified in the decree, by

attachment and sale or by sale without attachment of any 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 manner as the nature of the relief may require.2

A decree may be executed on the application of the decree-holder by attachment and

sale. The Code recognizes the right of decree-holder to attach the property of the judgment-
debtor in execution proceedings and lays down the procedure to effect attachment. Section 60
to 64 and Rules 41 to 57 of Order 21 deal with the subject of attachment of property.

NATURE AND SCOPE

In case of a decree from a Court, the Court may require the defendant to pay any sum
to the plaintiff. In case the defendant fails to do so, the Court can in execution of its decree,
attach the movable and immovable properties of the defendant and recover the amount due by
disposal of these assets. Section 51(b) empowers the Court to order execution of decree by
attachment and sale of property. An executing Court is competent to attach the property if it
is situated within the local limits of the jurisdiction of the Court. 3 The place of business of the
judgment-debtor is not material.

The words “attachment” and “sale” in Section 51 are to be read disjunctively and not
conjunctively. Hence, attachment is not a condition precedent and sale of property without
attachment is merely an irregularity and does not vitiate the sale. 4 The procedure of the Code,
however, does not affect any special or local law. Attachment and sale under any other
Statute, therefore, can be made and the judgment-debtor cannot claim under the Code.

1
Mahadeo Prasad v. Ram Lochan, (1980) 4 SCC 354
2
Section 51
3
M.A.A. Raoof v. KG Lakshmipathi, AIR 1969 Mad 268
4
MK Jain, (2nd Ed., 2007), The Code of Civil Procedure, New Delhi, India: Wadhwa & Company Nagpur
5
OBJECT OF ATTACHMENT
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
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.5

PROPERTIES 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 therefrom. All saleable properties (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.

Thus the property liable to be attached may be lands, houses or other buildings,
goods, money, bank notes, cheques, bills of exchange, promissory notes, Government bonds,
securities, shares in a Corporation and other than the assets expressly excluded, all other
saleable property-both movable and immovable.6

The property may be held in the name of judgment-debtor, by a trustee for his benefit
or in his behalf. In State of Punjab v. Dina Nath,7wherein the right to officiate at funeral
ceremonies was held to be not saleable, it was stated by the Supreme Court that Section 60 of
the Code of Civil Procedure8 is not exhaustive and specific non-inclusion of a particular
species of property under Section 60 is therefore, not of any consequence if it is
‘saleable’9otherwise.

PROPERTIES WHICH CANNOT BE ATTACHED

The proviso to Section 60(1) declares that the properties specified therein are exempt
from attachment and sale in the execution of a decree. The list enumerates certain properties
such as:

5
Ameer Ali Woodroffe (3rd Ed., 1987) Code of Civil Procedure (Vol 1& 3), New Delhi, India: Law Publishers
6
Supra Note 4
7
(1984) 1 SCC 137.

6
8
Hereinafter referred to as CPC
9
‘Saleable’ as used in this Section means saleable by auction under the orders of a Court.

7
1. PERSONAL PROPERTY:
 Clothes, cooking vessel, beds of the judgment-debtor, wife and children and personal
ornaments which as per religious usage cannot be parted with by any woman.
 Tools of artisans: As per Court decisions, it only includes movable tools and not immovable
tools.10
 If the judgment debtor is an agriculturalist, 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 which may have been declared
to be free from liability.11
 Houses and other buildings along with the materials and the land appurtenant thereto which is
necessary for their enjoyment, which belongs to an agriculturalist, labourer or any domestic
servant and is occupied by him.
 All moneys payable under a policy of insurance on the life of judgment-debtor. In certain
cases, policies for the benefit of judgment-debtor’s wife and children under the Married
Woman’s Property Act, 1874 are free from attachment.
 Tenancies in respect of a residential building covered by the provisions of any Rent Control
Act.

2. SALARIES:
 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.
 The wage of labourers and domestic servants, whether payable in cash or kind.
 Salary to the extent of the first Rs 1000 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.
 1/3 of a salary in execution of any decree for maintenance.
 Salary payable to persons covered by the Air Force Act, 1950, the Army Act, 1950 and the
Navy Act, 1957.

10
Supra Note 3
11
Section 61

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 All compulsory deposits and other sums in or derived from any fund to which the Provident
Funds Act, 1925 or the Public Provident Fund Act for the time being applies, in so far as they
are declared by the acts as not liable for attachment.
 Any allowance forming part of the emoluments of any servant of the
Government/railways/local authority which has been notified to be exempt from attachment
and any substance grant or allowance made to any such servant while under suspension.
 Any allowance declared by Indian law to be exempt from liability to attachment or sale in
execution of a decree.

3. INCORPOREAL PROPERTY:
 A mere right to sue for damages
 Any right of personal service
 An expectancy of survivorship or other merely contingent or possible right or interest
 A right to future maintenance
 Where the judgment debtor is a person liable for payment of land revenue, any movable
property which, under any law for the time being applicable to him is exempt for sale for the
recovery of an arrears of such revenue.
 Books of account

The exemptions listed in the proviso are cumulative and the judgment-debtor may claim the
benefit of more than one clause if he is qualified to do so. Further by the Amendment Act of
1976, a new Sub-section 1-A has been inserted on the recommendation of Law
Commission.12 It now specifically provides that any agreement to waive the benefit of any
exemption under Section 60 shall be void.

MODES OF ATTACHMENT

Rules 43 to 54 of Order XXI lay down the procedure for attachment of different types of
movable and immovable properties.

TYPE OF PROPERTY MODE OF ATTACHMENT

1 Movable Property (other than As per Rule 43 by actual seizure thereof. But if
agricultural produce) in possession such property is perishable, or the expense of
of judgment debtor

12
Supra Note 5

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 keeping it is likely to exceed its value, it may be
sold.
2 Movable property consisting of As per Rule 43-A, by leaving the same in
livestock, agricultural implements custody of a respectable person as the
or other articles which cannot be “custodian”
conveniently be attached
3 Movable property not in possession As per Rule 46(1)(c), by an order prohibiting the
of the judgment debtor person in possession thereof from giving it to the
judgment-debtor
4 Negotiable instrument neither As per Rule 51, 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 As per Rule 46(1)(a), 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 As per Rule 46(1)(b), 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 As per Rule 47, by a notice to the judgment-
property belonging to the debtor prohibiting him from transferring or
judgment-debtor and another as charging it
co-
owners;
8 Salary or allowance of a public As per Rule 48, by an order that the amount
servant or a private employee shall (subject to provision of Section 60) be
withheld from such salary or allowances either
in one
payment or by monthly instalments.
9 Partnership Property As per Rule 49, by making an order:
i. Charging the interest of the partner in the
partnership property;
ii. Appointing a receiver of the share of the
partner in profits;
iii. Directing accounts and inquiries; and
iv. Ordering sale of such interests

10
10 Property in custody of court or As per Rule 52, by notice to such court or of
public officer officer, requesting that such property, and any

11
 interest or dividend thereon, may be held subject
to the order of the Court.
11 Decree for payment of money or
sale in enforcement of a mortgage
or charge-
a) Passed by the Court executing As per Rule 53(1)(a), by an order of such Court
the decree
b) Passed by another Court As per Rule 53(1)(b), by issuing a notice to such
Court requesting it to stay the execution thereof
c) Decree other than that As per Rule 53(1)(c), by issuing a notice to such
mentioned above Court requesting it to stay execution thereof
12 Agricultural Produce As per Rule 44, by affixing a copy of warrant in
case of growing crop on land on which such
crop has grown and in case of a ready crop, the
place at which it is lying and also by affixing a
copy on the house in which the judgment-debtor
originally resides, works for gain, or last
resided, carried on business or personally
worked for
gain.
13 Immovable Property As per Rule 54, by an order prohibiting the
judgment-debtor from transferring or charging it
in any manner and all persons taking any benefit
from such transfer or charge.

Section 62 of the CPC provides that an attachment of movable property in a dwelling house
cannot be made by entering the house after sunset and before sunrise. Further it states that no
outer door of such dwelling house shall be broken unless such house is occupied by the
judgment-debtor. The outer door can be broken open if the judgment-debtor refuses to open
the door or in any way prevents access.

Section 63 prescribes procedure to be followed in case the property is attached in execution

of decrees by several Courts. In case the property is under attachment in execution of decrees
of more than one Court, the Court who shall receive or realize such property and determine
any claim with respect to it and any objection to the attachment shall be the Court of highest
grade. If there exists no such Court, then the matter is to be decided by the Court under whose

12
decree the property was first attached.

13
 PRECEPTS

A Precept means a command, an order or a warrant. It 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. 13 Section 46 provides that 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.

It was observed in Gurdial Singh v. Khazan Chand,14 that the object of attachment by precept
is to enable the decree-holder to obtain an interim attachment of the property of the judgment-
debtor situate within the jurisdiction of another Court where it is apprehended that the decree-
holder may otherwise be deprived of the fruits of the decree. Thus, it prevents the alienation
of property of a 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.

However, an order of precept is merely a step taken to facilitate execution, and not an order
transferring a decree for execution.15 Thus, the effect of the attachment in pursuance of a
precept is as a general rule, limited to two months unless the case is covered by the proviso.

LIMITATIONS TO PRECEPT:

1. There can be no order of permanent attachment by way of precept. Thus, an order of

permanent attachment is illegal.16
2. The section applies to matters which arise after a decree has been passed. Hence, it cannot be
invoked in aid of an application for attachment before judgment under Order 38 Rule 5.17
3. No attachment can be effected under this Section where the property is situate outside India.18

GARNISHEE ORDER

The concept of 'garnishment' has been introduced in CPC by the Amendment Act,
1976. This term ‘garnish’ has been derived from the French word 'garnir' which means to warn
or to

13
Ibid Note 10
14
AIR 1936 Lah 486
15
Rai Kissenji v. Sri Kissen, AIR 1940 Cal 26
16
Gudial Singh’s case Supra Note 13
17
Chimandas v. Mahadevappa Firm, AIR 1961 AP 417
14
18
Mela Mal v. Bishan Das, AIR 1931 Lah 723

15
prepare. In simple words the garnishee is the person who is liable to pay a debt to judgment
debtor or to deliver any movable property to him. Besides judgment debtor and decree holder,
garnishee is a third person in whose hands debt of the judgment debtor is kept.

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 the Court to attach money or goods belonging to the
judgment debtor in the hands of a third person. The third party is known as 'garnishee' and the
Court's order is known as garnishee order. It is a remedy available to the decree holder. This
order may be made by the order of the Court to holders of funds, i.e. a third party that no
payments have to be made until the Court authorizes them.19 The purpose of the order is to
protect the interest of the decree holder. This is 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 defendant.

The power of the Court enshrined under Rule 46A to issue Court notice, is
discretionary and the Court may refuse to pass such order if it is inequitable and the Court
apprehends that it can cause prejudice to the garnishee, or that the grounds of the application
seeking that remedy is not sufficient or if the affidavit is filed by decree holder is frivolous or
ambiguous, etc. The discretion, however, must be exercised judicially. 20 Where the Court
finds that there is bona fide dispute against the claim and the dispute is not false or frivolous,
it should not take action under this rule.

The executing Court has been given power to recover any of the amounts of the
judgment debtor, which is in the hands of other. The rule of 46 A requires a notice to be
issued to a garnishee before a garnishee order is passed against him. Thus, it was observed in
Surinder Nath v. Union of India,21 that if such notice is not issued and an opportunity of
hearing is not afforded before passing an order, the order would be null and void. In the eyes
of law, there is no existence of such an order and any step taken pursuant to or in
enforcement of such an order would be void.

19
Ibid Note 4

16
20
Vinay Kumar Gupta (14th Ed., 2005), Mulla’s Civil Procedure Code, New Delhi, India: Lexis Nexis
Butterworhts, Wadhwa Nagpur
21
1988 Supp SCC 626

17
Order XXI Rule 46B:

It empowers the Court, in case the garnishee does not appear and show cause against the
notice under Rule 46A to order him to comply with the terms of the notice and on such an
order, execution may be issued.22 Such an order is to be deemed to be a decree against the
garnishee and in favour of the judgment creditor. The further proceedings are in execution of
that decree and against the garnishee. The power to make such an order is discretionary and
may be refused on sufficient grounds such as where the judgment debtor’s interest in the debt
is not personal but is in the capacity as a trustee.23

Order XXI Rule 46C:

If the garnishee disputes indebtness to the judgment-debtor or alleges that the debt is not
attachable debt, the Court must order an issue to be raised and tried. Even if there is
reasonable doubt, the matter must be tried.

Order XXI Rule 46D:

Under this rule, if the debt belongs to a third person, the Court has to make an order directing
such a third person to appear and state his claim to such a debt and prove the same. The
words ‘where it is suggested or appears to be probably’ would mean that either the garnishee
points it out or that it appears to the Court from the record before it.24 Further, the Court is
empowered to pass its order with respect to the same under Order XXI Rule 46E.

Order XXI Rule 46F:

The object of this rule is to discharge the garnishee from his liability to his own creditor,
judgment debtor and any other person ordered to appear under Rule 46D for the amount paid
or levied. The words under Rule 46A or under any such order as aforesaid mean that the
garnishee gets discharge of his liability only if payment by him is made under Rule 46A or
under an order made under Rule 46B, 46C, 46E.25 Accordingly if garnishee makes payment,
not under the garnishee proceedings, but by way of private agreement, he would not get a
valid discharge under this Rule. The garnishee gets a valid discharge although the decree in
execution

22
AN Saha, (2006), The Code of Civil Procedure, 1908 (Vol 1), Allahabad, India: Premier Publishing Co.
23
Supra Note 20

18
24
Sarkar, S.C, The Law of Civil Procedure (7th Ed, Vol. I), Calcutta: S.C. Sarkar and Sons Private Limited, 1986)
25
Supra Note 22

19
of which the application is made under Rule 46A or the order passed in the proceedings under
such an application, is set aside or reversed.

Order XXI Rule 46G provides that the cost of garnishee proceedings is at the discretion of
the Court.

Order XXI Rule 46H states that orders passed in garnishee proceedings are appealable as
‘decrees’.

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 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.

Section 64 of the CPC makes it manifest that attachment has merely the effect of preventing
private alienation to the prejudice of claims under attachment. It conveys no title, charge, lien
or priority in favour of the attaching creditor. 26In fact, in Subbarao v. Official Receiver27 the
Andhra Pradesh High Court while dealing with the involuntary sale of the judgment-debtor’s
flat under a decree of a Court, stated that an order of attachment does not prevent a transfer
by operation of law and nor does it create any interest or lien.

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT: SECTION 64

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 the entire world, but is void against the claims enforceable under the attachment.
Section 64(2) as inserted by the Amendment Act of 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 the provision is to prevent fraud on decree-holders and to keep intact
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

20
26
Supra Note 14
27
AIR 1965 A.P. 52.

21
the transfer was effected or whether the transferee had acted in good faith or not. 28 But if the
sale deed was executed prior to attachment before judgment, it can be registered subsequently
and will prevail over the judgment.
The provision interferes with the right of the owner in alienating his property and hence,
should be construed strictly. Since, the provision is for the benefit of attaching creditor, he
can waive the benefit.29 In the case of Pradyut Shah30 it was held that Section 64 applies
whether the property stands in the name of judgment-debtor or any other person who is a
name lender i.e, a benami property. However, if the transfer is by operation of law or
pursuant to a Court’s order, Section 64 does not apply. It only covers private transfers, such
as, voluntary sales, gifts, mortgages.

CONCLUSION

“It has been said that the difficulties of a litigant begin when he has obtained a decree”31

The execution process, which commences with the filing of an application for execution,
aims at the enforcement of a decree by a judicial process. Aware of the fact that a number of
obstacles are placed in the way of a decree-holder, who seeks to execute his decree against
the property of the judgment-debtor, the CPC provides for elaborate rules and procedures for
the execution of decrees.

In an attempt to enable the decree-holder to realize the fruits of the decree passed by the
competent court in his favour, the Code allows for the attachment and sale of the properties
of judgment-debtor as one amongst the various modes of executing a decree. Thus, in an
attempt to ensure that attachment and sale of the property of the judgment-debtor remains a
viable and effective mode of execution of decrees the CPC has prescribed different
procedures for the attachment and sale of movable and immovable properties in execution of
money decrees. This is best illustrated in the prescription of actual seizure of the property in
cases of attachment of movable property, as in these cases a very real threat exist that the
property might escape the jurisdiction of court.

28
AK Banerjee, (2007), Commentary on the Code of Civil Procedure, 1908 (Vol. 2), Allahabad, India: Dwivedi
& Co
29
Ibid Note 28
30
AIR 1979 Bom 166
31
Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693.
22
 BIBLIOGRAPHY

 Banerjee, A.K (2007), Commentary on the Code of Civil Procedure, 1908 (Vol. 2),
Allahabad, India: Dwivedi & Co
 Gupta, Vinay Kumar (14th Ed., 2005), Mulla’s Civil Procedure Code, New Delhi, India:
Lexis Nexis Butterworhts, Wadhwa Nagpur
 Jain, M.K. (2nd Ed., 2007), The Code of Civil Procedure, New Delhi, India: Wadhwa &
Company Nagpur
 Saha, A.N (2006), The Code of Civil Procedure, 1908 (Vol 1), Allahabad, India: Premier
Publishing Co.
 Sarkar, S.C, The Law of Civil Procedure (7th Ed, Vol. I), Calcutta: S.C. Sarkar and Sons
Private Limited, 1986)
 Takwani, C.K (6th Ed., 2011) Civil Procedure, Lucknow, India: Eastern Book Company
 Woodroffe; Ameer Ali (3rd Ed., 1987) Code of Civil Procedure (Vol 1& 3), New Delhi,
India: Law Publishers.

23