Attachment of Property under CPC

Supreet Kaur

Execution of the decree, also known as implementation, passed by a court is the conclusive stage of litigation. The person in whose favor the decree has been passed is decree holder and against whom it is passed us called judgment debtor. The judgement debtor is legally bound to satisfy the decree.

Section 51 of CPC lays down following modes of execution of a decree:

  • By delivering any property which is specifically decreed.
  • By attachment of property
  • By arrest or detention in prison
  • Or in any other suitable manner

The decree holder is free to choose any one mode of execution of decree. No one can compel him to choose one or other mode of execution which was held in the case of V. Dharmavenamma v. C. Subramanyam.

Section 60 lists the property which can or cannot be attached. The following properties can be attached:

  • Land, houses and other buildings.
  • Goods, money, bank notes, cheques, Bill’s of exchange, promissory notes, government securities or other securities of money, debts.
  • Shares of a corporation
  • All other movable or immovable property which can be sold.

Requirements to attach a property:

  • The property can only be attached if the property belongs to judgement debtor or if judgement debtor has disposing power over such property.
  • The property may be in judgement debtor’s own name or held in trust for him by other person.

The section also lays down the property which can’t be attached.

EXEMTION GIVEN TO AGRICULTURAL LAND

In case the property is an agricultural land which is used by judgement debtor and his family for personal support, it may be exempted from being attached if the State government publish an order in that behalf.

According to Section 63 of CPC, if the same property belonging to judgement debtor has been attached for the purpose of execution of decrees passed by more than one court; the court which would ultimately receive that property for the purpose of execution of its decree,

  1. Must be a court of highest grade
  2. If the courts are of same grade, the court that executed the decree first, will receive that property for the purpose of execution of the decree. But the proceedings of other courts will not be invalidated if the property is passed to other court for execution.

Section 64 prohibits the judgement debtor for transferring his property by way of sale, lease etc. after the attachment of such property to execute the decree passed by court. The purpose is to safeguard the interest of decree holder in whose favor decree has been passed.

But if such transfer is made before attachment, it is not void.

Order XXI deals with mode of attachment of property.

ATTACHMENT OF MOVABLE PROPERTY – Rule 43

To attach a movable property, it is essential that the property is in possession of judgement debtor and the attachment must be made:

  1. by actual seizure
  2. After seizure, the property must be kept in the custody of attaching officer.

Such property may be sold if-

  • The property is liable to decay within short period.
  • The expenses to be incurred on its custody are likely to exceed its actual value.

MOVABLE PROPERTY NOT IN POSSESSION OF JUDGEMENT DEBTOR – Rule 46

If the movable property( belonging to judgement debtor) whose attachment is done is not in possession of judgement debtor, the person in possession of such movable property can be prohibited by the court from transferring the same to judgement debtor.

ATTACHMENT OF AGRICULTURAL PRODUCE – Rule 44

When the property to be attached is an agricultural produce, its attachment can be made:

  1. by affixing a copy of warrant on such land where the Corp is growing.
  2. if the crop has been harvested and gathered, the copy of warrant can be affixed where agriculture produce is stored.

Another copy of warrant must be affixed

  • Where the judgement debtor ordinary resides or
  • Where he carries on his business or
  • Where he has last resided.

ATTACHMENT OF DEBT- Rule 46

When the attachment is of a debt which is not secured, its attachment can be made by an order of the court prohibiting the judgement debtor from recovering such debt until further orders of the court.

However the debtor ( who is indebted to judgement debtor ) may pay his debt to court so to get absolved from liability.

ATTACHMENT OF SHARE IN CAPITAL – Rule 46

When a share is attached for purpose if execution, the court can prohibit the person who is owning those share from transferring such shares or receiving the profits from those shares.

ATTACHMENT OF SHARE IN MOVABLES- Rule 47

If the judgement debtor hold shares in a movable property, court can order him not to transfer such share.

ATTACHMENT OF IMMOVABLE PROPERTY- Rule 54

If the attachment is of a immovable property, the court can make order to prohibit the judgement debtor from transferring such property or receiving any benefits therefrom.

ATTACHMENT OF NEGOTIABLE INSTRUMENTS – Rule 51

Attachment of negotiable instruments like cheques, promissory notes, Bill of exchange etc. can be made by actual seizure of negotiable instruments and bringing it to court.

ATTACHMENT OF PARTNERSHIP PROPERTY- Rule 59

Unless the decree is passed against the firm as a whole, partnership property cannot be attached. However the interest of judgement debtor, who is a partner of a firm, can be attached.