This Article is written by Shruti Singh, 2nd year Law intern from Hidayatullah National Law University, Raipur pursuing B.A.LLB(Hons.) Course. This article explains the provisions and procedures which deals with attachment of property under the Code of Civil Procedure.
A civil suit is instituted against an individual who causes some kind of harm or wrongful act to the plaintiff. Usually, in a civil suit compensation is awarded to the complainant, the person who suffered harm because of the action of the defendant. Hence, a civil lawsuit can be brought over a residential eviction after a broken lease, a contract dispute, injuries caused due to car accidents, or countless other harms or disputes. The main objective of instituting a civil suit is to compensate for the harm caused to the aggrieved, unlike the criminal suit which emphasizes punishment for the wrongdoer.
There are three stages of every civil suit. It starts with the institution of a suit, adjudication of a suit and finally the implementation of a suit. The implementation of the suit is a step in which the results of the adjudication are put into action, hence this stage is known as execution. In this process, the order or judgement passed by the court is enforced or given effect. It is the enforcement of the decree and gives the benefit to the decree-holder in whose favour the decree has been passed. Section 38 of CPC states as to who can execute the decree. A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. Section 37 gives further explanation of certain expressions. In a proceeding for the 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 an alternative remedy of attachment available to the Decree Holder for realization of the decretal amount.
The Code of Civil Procedure, 1908 provides various modes of execution of a decree subject to some conditions and limitations.
Section 51 of CPC provides the following modes of execution of decrees subject to such conditions and limitations as may be prescribed.
(a) By delivery of any property specifically decreed;
(b) By attachment and sale or by the sale without attachment of any property;
(c) By arrest and detention in prison for such period not exceeding the period;
(d) In such other manner as the nature of the relief granted may require.
Attachment of property is one of the modes of execution applied by the court of justice. An executing court is competent to attach the property if it is situated within the jurisdiction of the court. The place where a judgement debtor carries out his business is not relevant.
Nature, Scope and Objective
Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree, the court may require a person(defendant) to pay an amount to the decree-holder. In cases where the defendant fails to pay the required sum, the court can, in the execution of its decree, attach the movable and immovable property of the defendant and recover the amount which is due by the disposal of these assets. However, there are some assets which cannot be attached to recover the due amount.
This article goes through various modes adopted by courts in executing a decree in a suit with special emphasis on “Attachment of property”. It also examines the various provisions relating to attachment in the Code.
Property which can be attached
Attachment is a legal term which refers to the action of seizing property in anticipation of a favourable ruling for a plaintiff who claims to owed money by the defendant. Decree Holder is Dominus litis(person to whom the suit belongs) and he h.as the right to choose the mode of execution from those available to him. Neither the Court nor the Judgement debtor can force or persuade him to choose a particular mode of execution. This can be referred from the case V. Dharmavenamma v. C. Subrahmanyam Mandadi.
In the process of attachment, the court at the request of the decree-holder designates specific property owned by the debtor to be transferred to the creditor or sold for the benefit of the creditor. Sections 60 to Section 64 and Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of property.
Section 60 CPC,1908 describes the property which can and cannot be attached while execution. Several types of property are liable for attachment and sale in execution of a decree like lands, houses or other buildings, goods, money, banknotes, checks, bills of exchange, hundis, government securities, bonds or other securities etc., and things on which he has a disposing power. There is express mention of particulars which shall not be liable for attachment or sale. The decree as mentioned in this section is only a money decree and it does not include a mortgage decree. Therefore, it is important that the property not only belongs to the judgement-debtor but also he has disposing power on it.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the JUdgement-debtor was liable to be sold for execution of the decree as his contention of agricultural produce was declined.
Section 61 grants partial exemption to agricultural produce- The state Government may by general or special order published in the Official Gazette declare any piece of agricultural land for the purpose until next harvest season for the due cultivation of land and support of the Judgement-debtor and his family, exempt that property from being attached or sold in execution of the decree.
Section 62 talks about seizure of property in case of dwelling house. No person executing under the code will enter the premises of a dwelling house after sunset and before sunrise. No door of such dwelling house can be broken without the knowledge of the Judgement-debtor. Where a woman resides in such house and she is not allowed to appear in public. The person executing has to give her a notice to be at liberty to withdraw and also reasonable time to do the same. Once she withdraws he has the power to enter the premises.
Section 63 says that where the property attached in execution of decree is going on in several courts then the final decision of the court of higher grade prevails and where the court are at same grades then the court where the case of attachment came first will hold a higher value.
Property which cannot be attached
Some kind of property which cannot be attached and sold in execution of a decree is expressly mentioned in Section 60 of the Code of Civil Procedure. Particulars like wearing apparel, cooking vessels, beds, tools of artisans, books of accounts, any right of personal service, wife and children, stipends and gratuities allowed to pensioners of the Government etc. and many more.
Modes of attachment
Rule 43 to Rule 54 of Order 21 lays down a proper procedure for attachment for movable and immovable property.
Order XXI Rule 54- The modes of procedure for attachment of immovable property initiates or starts with issuing a prohibitory order to the debtor and the public generally, this order will prevent the judgment-debtor from transferring the property to himself or anyone else or charging it. The judgment debtor shall attend the court on the date decided for deciding the terms of the proclamation of sale. Normally for immovable property, two copies of prohibitory orders are sufficient. But where the land is such that the revenue accrued from it is paid to the government, three copies of prohibitory order is prepared. In order to make the attachment lawful, the particulars given in the schedule attached with the order should be matched to be exactly the same with the details given in the schedules of the property given in warrant.
Furthermore, the warrant and the prohibitory orders along with the copies shall be submitted to the Nazir. The Nazir will then endorse the warrant and return it within a defined time before the Court. Where any person delegated by the Nazir completes the above-mentioned work of attachment of property, a separate document stating how the day and hour at which he did such an act has to be properly attached.
Warrant of Attachment of Land.Drum Beating charges- Any customary or usual practice will be carried out for proclamation of the order, and the copy of it will be affixed on a conspicuous part of the property as well as on the court. After this, the reader has to record a note stating the fact that all the required formalities dictated by law to be followed have been complied with. The presiding officer will then take charge of ensuring its truthfulness. The court also has the obligation to make sure that all the requirements or formalities for a legal attachment have 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 caution and care in the process of service of warrants of attachment before they take any action concerning the property.
When the property is movable property, which is not agricultural produce, then the attaching officer can seize the property and keep it in his custody. But on the other hand if the property seized is of a 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 by applying every means, he can at the instance of judgment-debtor or decree-holder or anyone having an interest 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 can be made liable for the inability to produce such property before the court, or for any loss or damage caused to it.
When the property is agricultural produce, a copy of the warrant of attachment can be affixed on the land on which such crops are grown, or where the produce has been cut or gathered, or on the threshing treading floor or fodder-stack.
Where the property to be attached is a negotiable interest which is not within the custody of a public officer, or deposited in the court, the process of attachment can be carried out through actual seizure.
The dictionary meaning of the word Precept is “ a general rule intended to regulate behaviour”, a writ or a command.
According to Section 46 Attachment can be made under percept, under which an interim attachment is provided to the decree-holder. The sections provided that the court which passed the order may on the request of the decree-holder, issue a precept to the court within whose jurisdiction the property of the judgement-debtor is lying to be attached to any property specified in the precept.
Thus, a precept aims at preventing alienation of property of the judgement-debtor not located within the jurisdiction of the court which passed the decree.
Rule 46-A to 46-I of Order 21 outlines the procedure in case of garnishee orders. In a Garnishee order, the decree-holder seeks to reach money or property of the Judgement-debtor in the hands of a third party(another person). Then the third party may be ordered by the court to pay the judgement creditor the debt from him to the judgement-debtor. This type of exchange is valid.
A Garnishee is a person who is the debtor of judgement-debtor. He is that person who is under an obligation to pay his debt to judgement-debtor or to deliver any movable property to him. “Garnishor” is the one in whose favour the decree is passed i.e., decree-holder (judgement- creditor). He is the person who brings such proceedings to reach judgement’s debtor money or property held by a third party. A garnishee order helps the debt due by the debtor of the judgement-debtor to be available to the decree-holder without involving him in the suit.
Determination of attachment
Determination means the status of the attachment at a particular time. In times of cases where the property has been attached but later on the court passes an order dismissing such an execution, the court will direct the status of the attachment, i.e, whether the attachment will continue or discontinue to exist. If then the court fails to give clear direction it is considered implied that the attachment has been ceased.
Order XXI Rules 55-38 explains the circumstances under which the attachment is determined under the Code.
- Where the decretal amount is paid or is satisfied;
- Where the decree is reversed or set aside;
- Where the court highlights an objection against the attachment and makes an order for releasing the property;
- Where after the attachment the application for execution is dismissed;
- Where the judgment holder withdraws the attachment;
- Where the decree-holder fails to do what he was required to do under the decree;
- Where the suit of the plaintiff is dismissed;
- Where the attachment is ordered before the judgement and the defendant furnishes necessary security;
- Where there is an agreement or compromise made between the parties;
- Where the creditor abandons the attachment.
Private alienation of property after attachment
Section 64(1) states that a private alienation of property made after the attachment is void as against the claims enforceable under the attachment. Section 64(2) says clarifies that this section is not applicable in case of transfer of property in pursuance of a contract entered into before the attachment. This provision is inserted in the Code to stop any kind of fraud on decree-holders and to keep the interests of the judgement-creditors who are entitled to be satisfied out of the assets of the judgement-debtor. This provision in a way interferes with the rights of the owner in alienating his property and hence is construed strictly. However, since it is for the benefit of the creditor he can waive this benefit. A private transfer here means a voluntary transfer like sale, lease, gift, mortgage etc. the transfer directed by the court is not included in private transfer. Therefore a private transfer in contravention of Section 64 is not wholly void against all other transactions bit is void only against the claims enforceable under the attachment and only to the extent necessary to meet those claims.
In a civil suit, the decree-holder has the benefit of deciding the mode of execution of a decree passed by the court as against the judgement-debtor. The judgement-creditor can choose from the various provisions mentioned in the Code. He cannot be forced or persuaded to choose a particular mode by the court or any other person. Attachment is the first step in the process of execution and sale of the property will be carried out after the process of attachment. Sometimes, the sale can be proceeded with, without an attachment of the property as well. This does not make the sale irregular in nature. But naturally, the correct procedure to be followed is attachment followed by the sale of the property.
Attachment of Property, being one of the modes of execution of a decree recognises the right of the decree-holder. Various amendments have been carried out in the Code to protect the interest of both Judgement-debtor and judgement-creditor.
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