Khushi Lunawat
Each civil suit has three phases. It begins with the organization of a lawsuit, the award of a lawsuit and finally the execution of a lawsuit. The execution of the case is a process in which the consequences of the award are put into effect, so this stage is known as execution.
The order or judgment passed by the court is enforced or given effect in this process. It is the compliance of the decree which gives the advantage to the holder of the decree on whose behalf the decree was passed. As to who will enforce the decree, CPC Section 38 says- Either by the court that passed it or by the Court to which it is submitted for execution, a decree may be executed.
A further clarification of such expressions is given in section 37. In the proceedings for the arrest of the Judgment Debtor, if the holder of the Decree satisfies the Court that the Judgment Debtor has adequate means to comply with the Decree, the Court cannot refuse to order the arrest of the Judgment Debtor on the ground that an alternative remedy of attachment is available to the holder of the Decree for the realization of the sum of the decree.
PROPERTY THAT CAN BE ATTACHED
In the case of V. Dharmavenamma v. C. Subrahmanyam Mandadi, it was held, attachment is a legal term referring to the seizure of property activity in expectation of a favourable verdict for a plaintiff who argues that the defendant owes money.
Dominus litis(person to whom the suit belongs) is the Decree Holder and he is entitled to choose the mode of execution from those open to him. Neither the court nor the judgement debtor may compel or convince him to select a specific method of execution.
The property that can and cannot be attached during execution is defined in Section 60 CPC,1908. In execution of a decree such as land, houses or other buildings, commodities, money, banknotes, checks, exchange bills, hundis, government securities, bonds or other securities, etc., many types of property are liable for attachment and sale, and items on which he has a disposing power. Details that are not liable for attachment or sale are expressly listed.
The decree is only a money decree as stated in this section and it does not include a mortgage decree. It is critical, therefore, that the property not only belongs to the judgment-debtor, but that he also has the power to dispose of it.
The state government may declare any piece of agricultural land for the purpose of due cultivation of land and support of the Judgement-debtor and his family until the next harvest season by general or special order published in the Official Gazette, exempt that property from being attached or sold in execution of the decree.
Section 62 deals with the seizure of land in the case of residential housing. After sunset and before sunrise, no person executed under the code can enter the premises of a dwelling house. No door of such a dwelling house can be broken without the Judgement-debtor’s knowledge.
Where a woman lives and is not permitted to appear in public in such a building. The person carrying out the execution must give her notice that she is free to withdraw, as well as a fair period of time to do so. He has the power to access the premises until she retreats.
Section 63 states that if property is attached in the execution of a decree in many courts, the final decision of the court of higher grade will prevail, and if the courts are of equal grade, the court where the case of attachment was filed first will have a higher value.
MODES OF ATTACHMENT
Rule 43 to Rule 54 of Order XXI provides for an effective procedure for annexing movable and immovable land.
Order XXI Rule 54- The modes of procedure for attaching immovable property begin with the issuance of a prohibitory order to the debtor and the general public, which forbids the judgment-debtor from transferring or charging the property to himself or anyone else.
On the date agreed for the determination of the terms of the proclamation of sale, the judgement debtor shall attend the tribunal. Two copies of prohibition orders are usually appropriate for immovable property.
Attachment of Land Warrant a drum Defeating the allegations– For the proclamation of the decree, any customary or normal procedure will be followed, and a copy of it will be displayed on a prominent part of the property as well as on the court.
After this, the reader must record a note indicating that all the required formalities to be followed dictated by law have been complied with. The presiding officer would then be responsible for ensuring its accuracy. The court also has the duty to ensure that all the conditions or formalities for a legal attachment have been met in order to avoid some kind of material irregularity, as it could cause the parties considerable trouble and damage.
GARNISHEE ORDER
The process for garnishee orders is outlined in Order XXI Rules 46-A to 46-I. The decree-holder attempts to enter money or property belonging to the Judgement-debtor that is owned by a third party via a Garnishee order (another person). The court may then order the third party to pay the judgement creditor the debt owed to him by the judgement debtor. This form of transaction is appropriate.
The procedure for garnishee orders is set out in Order XXI Rules 46-A to 46-I. The decree-holder attempts to recover money or property belonging to the Judgement-debtor that is owned by a third party via a Garnishee order (another person).
The court may then order the third party to pay the judgement creditor the amount owed to him by the judgement debtor. This is a legal trade.
CONCLUSION
The decree-holder has the privilege of determining in a civil action the method of execution of a decree passed by the court against the judgment-debtor. From the various provisions referred to in the Code, the judgment-creditor may choose.
The court or anyone else cannot compel or convince him to choose a particular mode. The attachment is the first step in the execution process and the selling of the property will take place after the attachment process.
The selling may often be done without the property being attached as well. This does not mean that the sale is out of the ordinary. But naturally, attachment followed by the selling of the pr is the right protocol to be followed.
The right of the decree-holder is recognised by the Attachment of Property, one of the modes of execution of a decree. The Code has been amended to protect the interests of both the judgement-debtor and the judgement-creditor.
*Attachment of Property (blog.ipleaders.in)
*Attachments in Execution (articlesonlaw.wordpress.com)
Read more : Execution petition, Attachment of property
