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(Term paper towards the fulfilment of assessment in the subject of Civil Procedure Code)
Summer Session
The civil procedure code is based on the principle of natural justice and therefore in order to
protect the decree holder, it provides various provisions in CPC that aims at protecting the
interest of the decree holder in which the attachment is the one of the modes. The property can
be of any type, it can be movable or immovable and that is why CPC provides different
procedures for the attachment of different types of the property. On the application of the decree
holder, a decree may be executed through attachment and sale or by sale without attachment of
Property. Sections 60-64 and Rules 41 to 57 of Order 21 deal with the subject of attachment of
the property.
OBJECT OF ATTACHMENT
The primary object of the attachment of the 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 proceeding. At the
same time, it protects a judgment debtor by granting exemption to certain properties from
attachment and sale.
ATTAHCMENT OF PROPERTY
In modern usage, all property are divided into two types, movable and immovable.
Section 601 of the Code of Civil Procedure, 1908 says that with the exception of those things of
property said in its proviso; houses, lands or different structures, products, checks, banknotes,
hundis, promissory notes and bill of exchange.
1
Section 60, Civil Procedure Code,1908.
2
II. SEIZURE OF PROPERTY IN DWELLING-HOUSE
The provisions of Section 622 of the Code are somewhat similar to Section 553 of this Code. The
restriction in Section 62 pertains to execution of the decree by way of seizure of movable
property, whereas Section 55 deals with execution of the decree by way of the arrest of the
Judgment-debtor.
The section provides the procedure to be adopted when the same property is attached in
execution of one or more decrees by more than one courts. The Court of highest grade of all such
Courts shall have power of distributing the assets among different decree-holders. To claim the
benefit of Section 63 the property attached should not be in the custody of any court.4
Section 64 of Code of Civil Procedure states that 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. The expression “private alienation”
under section 64 doesn’t include sale or transfer by a mortgagee
MOVABLE PROPERTY
2
Section 62, Civil Procedure Code,1908.
3
Section 55, Civil Procedure Code,1908.
4
V.T. Veerappa Chettiar v. P.S.Palaniappa Chettiar, AIR 1973 Mad 313.
5
Order XXI ,Rule 41, Civil Procedure Code,1908.
3
II. Attachment in case of decree for Rent or Mesne property.
Order XXI, Rule 426, Code of Civil Procedure provides that where a decree directs an inquiry as
to rent or mesne profits or any other matter, the property of the Judgment debtor may before the
amount due from him has been ascertained, be attached, as in the case of an ordinary decree for
the payment of money.
Order XXI, Rule 437, of the Code of Civil Procedure describes the mode of attachment of
moveable properties other than agricultural produce in the possession of the Judgment-debtor
Rule No. 448 of Order 21, of the Code of Civil Procedure mentions about the method of
attachment of agriculture produce.
Order XXI, Rule 46(1)9 Code of Civil Procedure, prescribes the mode of attachment of debt,
share and other property not in possession of Judgment-debtor and the relevant portion of the
Rule provides that in the case of the other moveable property not in the possession of a
Judgment-debtor, the attachment shall be made by a written order prohibiting the person in
possession of the same from giving it over to the Judgment-debtor
Rule 4810 provides a special procedure for attachment of the salary of Government servants,
Railway employees and employees of public sector undertakings and local bodies. There is no
specific provision on the line of Rule 48 of Order 21 for the attachment of the salary of a private
6
Order XXI, Rule 42, Civil Procedure Code,1908.
7
Order XXI, Rule 43, Civil Procedure Code,1908.
8
Order XXI, Rule 44, Civil Procedure Code,1908.
9
Order XXI, Rule 46(1), Civil Procedure Code,1908.
10
Order XXI, Rule 48, Civil Procedure Code,1908.
4
servant. This rule and Section 60 Code of Civil Procedure do not create rights. They give no
rights to sue.
Under Order 21, Rule 5111 of the Civil Procedure Code the attachment of negotiable instruments,
which are neither deposited in the court nor in the custody of a public officer, is legally affected
by actual seizure. As regards negotiable instruments it does not matter whether the negotiable
instrument is in possession of the judgment-debtor or not. Furthermore, the actual seizure of the
negotiable instrument is necessary as there is always a danger that third parties may bona fide
become possessed of the negotiable instrument, and if a prohibitory order is held to be a valid
attachment, they would be prejudiced by such an order of which they may know nothing.12
IMMOVOABLE PROPERTY
Attachment of immovable property is made by prohibiting the judgment debtor from transferring
or charging property attached in any way and all persons in taking any benefit from such transfer
or charge.
Order XXI, Rule 54 (1)13, Code of Civil Procedure lay down that 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. As long as the
attachment is operative, no third party right can be created.14
11
Order XXI, Rule 51, Civil Procedure Code,1908.
12
Supra Note 25, pp. 874.
13
Order XXI, Rule 54(1), Civil Procedure Code,1908.
14
Barnes Investment Ltd. V Raj K. Gupta, AIR 2001 SC 2818.