Types of Attachment of Property

Supreet Kaur

Attachment of property is one of the way of execution of a decree. The purpose of attachment is to safeguard the interest of the plaintiff in whose favour the decree is passed or may be passed. The attachment of property can be done either during the pendency of proceedings or after the judgement is passed.

So the attachment is of two types:-

  1. Attachment before judgement
  2. Attachment after judgement.

ATTACHMNET BEFORE JUDGEMENT

Rule 5 to 13 of Order XXXVIII deals with attachment of property before judgement.

Rule 5 : When the plaintiff files an affidavit and the court is satisfied that the defendant has an intention to delay the execution of decree which may be passed against him. And the defendant for that purpose

  • is going to dispose of his property
  • is about to remove his property from the local jurisdiction of the court which is trying the suit.

When the court is satisfied, it may direct the defendant to-

  • Furnish the security in that behalf which may be sufficient to satisfy the decree or
  • To give cause for not furnishing security.

In R Ramesh v. R. Ranveender, 2014 Madras High Court; the court held that to attach the property before the judgement, the following conditions must be fulfilled:

  1. The court is satisfied that there are chances of the decree to be passed in favour of plaintiff.
  2. Plaintiff should have a prima facie case, in case the plaintiff doesn’t have a prima facie case, the court can’t go to the extent of securing the interest of plaintiff under Rule 5.
  3. Even if the plaintiff has a prima facie case, he can’t get the property attached before the judgement unless he is able to show that the defendant is trying to defeat the decree. These two factors must coexist.

In Prem Raj v. Maneck Gazi, 1951 Cal H.C.;: The court observed that the plaintiff must show the source of his information regarding the intention of plaintiff and he must satisfy the court with the reliability of the source.

If some portion of his property is sold off by defendant to meet some financial obligations, it can’t be construed that the defendant is trying to dispose of his property.

Merely because the defendant is winding up his property, the plaintiff can’t ask for attachment of property unless it is shown that the defendant is doing so as to delay the execution of decree.

In Bharat Tobacco Ltd v. Maula Saheb, 1980 Guj H.C.;: The court held that the power must be used with extra caution so that the power must not appear as a weapon in the hands of the plaintiff.

Rule 6 : If defendant doesn’t give a cause

If as provided in Rule 5, the defendant is not able to give a cause for not furnishing the security, the court may order the property to be attached.

In case the defendant shows a cause, the order of attachment will be withdrawn.

Rule 9 : If defendant furnishes security

If as provided in Rule 5, the defendant furnishes the security, the court will withdraw the attachment either

  • when the security is furnished or
  • when suit is dismissed.

Rule 10: Rights of Third persons

If any other person has some rights over the property prior to attachment, the subsequent attachment doesn’t affect their rights.

If such property is already attached for the purpose if execution of a decree, the decree holder in such case is not barred from exercising his right of sale of the property.

Rule 12 : What can’t be attached

“Agriculture produce in the possession of an agriculturalist can’t be attached. Neither the plaintiff can ask for it noR the court has power to do so” was held in the case of Pellur Venkatasubbamma v. Devvur Narayan LQ 1938 HC 0383

ATTACHMENT AFTER JUDGEMENT

Section 60 to 64 of CPC and Order XXI deals with it. The purpose of attachment after judgement is not to secure the payment of plaintiff but to execute the decree. The object to attach the property before the judgement is prevent the defendant from disposing of his property.

However the attachment after judgement is a step to finalize the judgement. 

ATTACHMENT UNDER THE CODE OF CRIMINAL PROCEEDURE, 1973

  • Section 83:

The purpose of attachment of property under Cr.P.C. is to make the person appear before the court i.e. to secure the attendance.

In this regard, the first step is to issue a summon, if the person doesn’t appear, then a warrant is issued. If the person still doesn’t appear the court issues a proclamation.

After 30 days of issuing a proclamation, the court can make order for attachment. The attachment of the property can be ordered during the issuance of proclamation if the court is satisfied that such person-

  • is going to dispose of his property
  • is going to remove his property from local jurisdiction of that court.

The property to be attached may be situated within the district or outside the district. If the property is outside the district, the endorsement of district magistrate of that court is required.

MODES OF ATTACHMENT

If property is movable : The movable property can be attached by-

  • Actual seizure i.e. taking possession
  • By appointment of a custodian
  • If the property is in possession of some other person the court may order such person the court may order the person not to deliver that property to the person to whom the proclamation is issued.

If property is immovable: Immovable property can be attached by-

  • taking possession
  • appointment of a custodian
  • If the property is given on rent or so, court may order the tenant not to pay the rent to the person to whom proclamation is issued.

Read more: Attachment of property under CPC