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Attachment of property in execution of decree

Attachment of property is one of the modes of execution of decree in a civil suit.
In a decree, the Court may require a judgment debtor to pay an amount to the decree
holder. In cases where defendant fails to pay the required sum, the court can, in the
execution of its decree, attach the movable and immovable property of the judgment
debtor and recover the amount which is due by the disposal of these assets. 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.
Thus, private alienation of the attached property is void as stated in Section 64 of
the Code of Civil Procedure, 1908 as “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.” However, a private
transfer under this section is not absolutely void, but void only as against claims
enforceable under the attachment.
In the case of U Htun Aung vs. U Nyunt Sone, 1982, Civil Appellate Case
No.90, the District Court issue an order to attach certain property according to the
submission of the decree-holder. However, according to the suspension order imposed by
the Central Court, the warrant could not be issued. After the Central Court revoked such
suspension order, the decree-holder submitted again for warrant. However, the third
parties submitted that the said property cannot be attached as they had already bought it
and the District Court accepted their submission and decided that the warrant should not
be attached. Therefore, the decree-holder made an appeal to the Central Court and it was
decided that although the District Court had issued the attachment order previously, the
property had not been attached at that time and thus the alienation of such property by the
judgment-debtor before the attachment is completed and so it cannot be said to be void.
Attachment of property may be done in different ways according to the nature of
the property and its different modes is prescribed in Order XXI, Rule 43 to 54 of the Civil
Procedure Code. Attachment of property belonging to the judgment-debtor may be
divided into two classes: movable and immovable. Mostly the attachment of movable
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property is by actual seizure and kept in the custody of the attaching officer. Moreover,
the Court can also attach the movable property by issuing a prohibitory order in the case
such as: debt, the movable property not in possession of the judgment-debtor, share in a
company and share or interest in movable property.
Pursuant to Order XXI Rule 46(1)(i) of the Civil Procedure Code, in case of the
attachment of debt, the court may attach the debt by issuing a prohibitory order to the
debtor of the judgment-debtor from making any payment which such order is known as
garnishee order. As per Order XXI Rule 63A of the Civil Procedure Code, 1908, where a
debt has been attached under Rule 46, the debtor may pay the amount of the debt due
from him to the judgment debtor into Court, and such payment shall discharge him as
effectually as payment to the party entitled to receive the same. The case of J.P Rajaram
v. Manager of the Reserve Bank of India, 1941 Ran 759 said that the Court can also
attach the money of the judgment debtor which he keeps at the bank and issue a written
order prohibiting the bank from making any payment to the judgment-debtor. Moreover,
it was held in the case of G.H Shirarazi vs. T.V Reddy, 1939 Ran 694 that a warrant
cannot be attached to the debt that is not within the court’s jurisdiction. A person who
does not live within the jurisdiction of the execution Court and for the debt to be paid
outside the jurisdiction of such court, the Court could not attach such debt in order to
execute the money decree upon the application of the decree-holder.
In case of immoveable property, Order XXI, Rule 54(1) of the Civil Procedure
Code, states that “where the property is immoveable, the 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.” In attaching
immoveable property, beating of drum or any customary mode will be carried out at
some place on or adjacent to such property for the purpose of proclamation of the order.
Thus, the basic distinction between attachment of movable and immovable
property is that in the former case the 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, while the attachment of immovable property is effected only by issuing a
prohibitory order and by proclaiming such order by beating drum or by any customary
practice.
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In conclusion, it can be said that the attachment of property is specifically

required if the debt is not cleared. The Civil Procedure Code, 1908 prescribes many
procedures and modes of attachment of different kinds and properties. From the above
mentioned, it can be said that the attachment procedure of immovable property is clearer
than that of movable property as movable property may have different kinds and each of
their procedure may also different. Anyhow, the main purpose of attachment of property
is to give an assurance to the decree-holder that he surely may get the fruits of the decree
by preventing the judgment-debtor from alienating of the respective property.