You are on page 1of 17

ATTACHMENT AND SALE OF PROPERTY UNDER CIVIL PROCEDURE

CODE

Civil Procedure Code

Submitted by:-

Khushal Gurjar

SM0115019

3rd Year 5th Semester

National Law University, Assam


Table of Contents

INTRODUCTION……………………………………………………………………………...3

RESEARCH QUESTIONS………………………………………………………………….....3

LITERATURE REVIEW………………………………………………………………………4

SCOPE AND OBJECTIVE…………………………………………………………………….4

RESEARCH METHODOLOGY……………………………………………………………….4

..........................................13

ATTACHMENT OF PROPERTY……………………………………………………….…5

SALE OF PROPERTY………………………………………………………………6

CONCLUSION……………………………………………………………………………….15

BIBLIOGRAPHY…………………………………………………………………………….16
INTRODUCTION

The passing of a decree by a competent court conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit, thus creating substantive rights
in favour of the decree-holder. However, lately it has been seen that instead of following the
terms and conditions of the decree, judgment-debtors have been placing a number of obstacles in
the way of a decree-holder, who seeks to realize the fruits of the decree passed in his favour by a
competent court. In fact, such a trend has become so prevalent that it has forced the Supreme
Court to opine that ‘the difficulties of a litigant begin when he has obtained a decree’. Conscious
of the significance and importance of giving effect to the decree and orders passed by competent
courts, the Code of Civil Procedure provides for elaborate rules for the execution of decrees. In
an attempt to ensure that a decree-holder is able to realize the fruits of the decree, the Code of
Civil Procedure gives a number of modes for the execution of decrees. One of these modes of
execution of decrees is the process of attachment and sale of the properties of the judgment-
debtor. Since, a judgment-creditor does not by virtue of his judgment, get a right to the property
of the judgment-debtor, his remedy is not by way of a suit but by attachment and sale in
execution. While through the process of attachment the court informs the world that the property
so ordered to be attached is “in its view” and “no existing rights and liabilities should be
altered”; through the process of sale of the properties of the judgment-debtor, the Court diverts
the money so collected to the decree-holder in satisfaction of his claim. However, by its very
nature property may be of different types. Therefore, a judgment-debtor may possess either
movable or immovable properties, or both. Thus, keeping in regard the differing characteristics
of these two types of properties, the Code of Civil Procedure prescribes different procedures for
the attachment and sale of movable and immovable properties. It is the endeavor of this project
to examine the process of attachment and sale of movable and immovable property in a money
decree and to intellectualize the reasons for the different process for the attachment and sale of
movable and immovable property.
Aims and Objective-

The aim and objective of this project is to make a detailed study of the process of attachment and
sale of movable and immovable properties in a money decree. In addition, this project also
endeavors to intellectualize the reasons for the different procedures for the attachment and sale of
movable and immovable property.

RESEARCH QUESTIONS

 How do parliamentary committees in India work?


 What are the various functions of these committees?
 What is the composition of these committees?

LITERATURE REVIEW

1. D.D. Basu, CONSTITUTION OF INDIA, 14th edition, 2009, LexisNexis Butterworth;

Commentary on the Constitution of India authored by Durga Das Basu, is an authoritative work
on the Constitution of India. It provides the reader with insight on aspects that are philosophical,
sociological, political and legal. It is written in a lucid, comprehensive and systematic manner. It
contains judgements in a systematic manner for the reader to interpret and understand the judicial
decisions.

2. M.P. Jain, INDIAN CONSTITUTIONAL LAW, 6th edition, 2011, LexisNexis Butterworth;
M.P. Jain Indian Constitutional Law is an authoritative, evergreen classic on Indian
constitutional law. This book, presently in its seventh edition, is a thematic presentation of the
complex and multi-dimensional subject of Constitutional law in a lucid, comprehensive and
systematic manner. The book contains in-depth insights that will benefit students, research
scholars, lawyers, judges, legal academics, policy makers and interested citizens who look for
the latest in constitutional jurisprudence.

SCOPE

The scope of this project is limited to the study of the various provisions regarding
attachment and sale of property in execution of decrees provided for in the Code of Civil
Procedure.

RESEARCH METHODOLOGY

In the project titled “Working of Parliamentary Committees in India: An Assessment” the


researcher has used the doctrinal method of research. According to it the researcher has used the
books and journals available in the law library of National Law University, Assam.
ATTACHMENT OF PROPERTY

A decree may be executed on the application of the decree holder by attachment and sale or by
sale without attachment of property. The code recognizes the right of the decree-holder to attach
the property of the judgement-debtor in execution proceedings and lays down the procedure to
effect attachment. Section 60 to 64 and Rules 41 to 57 of the Order 21 deals with the subject of
attachment of property.

The code enumerates properties which are liable to be attached and sold in execution of a decree.
It also specifies properties which are not liable to be attached or sold. It also prescribes the
procedure where the same property is attached in execution of decrees by more than one court.
The code also declares that a private alienation of property after attachment is void.

An executing court is competent to attach the property if it is situated within the local limits of
the jurisdiction of the court.1 The place of business of the judgment debtor is not material.2

The primary object of attachment of property is to give notice to the judgement debtor not to
alienate the property to anyone as also to the general public not to purchase or in any other

1
M.A.A Raoof v. K.G Lakshmipathi, AIR 1969 MAD 268
2
Ibid
manner deal with the property of the judgment debtor attached in execution proceedings, at the
same time, it protects a judgment debtor by ranting exemption to certain properties from
attachment and sale.

Property which can be attached: Section 60

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt therefrom. All saleable property( movable or immovable)
belonging to the judgement-debtor or over which or the portion of which he has a disposing
power which he may exercise for his own benefit may be attached and sold in execution of a
decree against him.

Property which cannot be attached: Section 60-61:

The proviso to sub-section (1) of Section 60 declares that the properties specified therein are
exempt from attachment and sale in the execution of a decree. The list enumerates certain
properties such as necessary wearing apparel, cooking vessels, bedding, tools of artisans,
implements of husbandry, houses of agriculturists, wages, salaries, pensions and gratuities,
compulsory deposits, right to future maintenance, etc. The exemptions listed in the proviso are
cumulative and the judgement-debtor may claim the benefit of more than one clause if he is
qualified to do so.3

There was a conflict of judicial opinion as to whether a judgment-debtor can waive the benefit
conferred upon him by the proviso. One view was that since it was intended for the benefit of the
judgment-debtor he can waive it.4 Another view was that it was based on public policy and
therefore, cannot be waived by him.

3
Municipal Corpn. Of Rangoon v. Ram Behari, AIR 1939 Rang 432
4
Rajinder Kumar v. Chetan Lal, AIR 1940 Lah 65
By the Amendment Act of 1976, new sub-section (1-A) has been inserted on the
recommendation of the Law Commission.5 This new sub-section now specifically provides that
any agreement to waive the benefit of any exemption under section 60 shall be void. Section 61
empowers the State Government to exempt agricultural produce from attachment or sale. This
provision is intended to enable an agriculturist to continue agricultural operations eve after
execution of a decree.6 The quantum of attachment of agricultural product depends upon the
quantum of decretal amount.

Section 63 where two different courts have attached the same property through different decree,
then it will be looked, that which court is superior. The value of the property will determine
whether further attachment can be done or not.

Private Alienation of Property after Attachment: Section 64

Section 64(1) enacts that a private alienation of property after the attachment is void as against
claims enforceable under the attachment. The alienation, however, is not absolutely void against
all the world, but is void against all the world, but is void against the claims enforceable under
the attachment.

Sub-section (2) of Section 64, as inserted by the code of civil Procedure (Amendment) Act, 2002
clarifies that the section will not apply to a transfer of property in pursuance of a contract entered
into and registered before the attachment.

The primary object of this provision is to prevent fraud on decree-holders and to keep intact the
rights of attaching creditors and of those creditors who have obtained decrees and are entitled to
satisfaction out of the assets of the judgement-debtor. It is, therefore, immaterial for the
application of Section 64 whether the decree had or had not been passed before the time when
the transfer was effected or whether the transferee acted in good faith or not. But if the sale deed

5
Law Commission’s Fifty-fourth Report at P. 50.
6
Azmat Ali v. Raj Ditta, 1969 AII LJ 1045
was executed prior to attachment before judgement, it can be registered subsequently and will
prevail over attachment.

A private transfer means a voluntary transfer such as sale, mortgage, lease, gift, etc. and not a
transfer by operation of law such as sale under a decree passed by a competent court. Finally, a
private transfer in contravention of section 64 is not wholly void against all the world but is void
only against claims enforceable under the attachment and only to the extent necessary to meet
those claims.

2. Mode of attachment of immovable property— The mode of attaching immovable property


is by issuing a prohibitory order to the judgment debtor and to the public generally.

(It shall require the judgment debtor to attend Court on a specified date to take notice of the
date so fixed for settling the terms of the proclamation of sale). (The order shall also take
effect, as against of person claiming under a gratutious transfer from the judgment-debtor,
from the date of attachment, as against others from the date they had knowledge of the passing
of the order of attachment or from the date of proclamation, whichever is earlier (Order XXI,
Rule 54), when the property is land paying revenue to the Government, three copies of the
prohibitory order shall be prepared. In the case of other immovable property, only two copies
are necessary. The details given in the schedule annexed to the order shall be identical with
those given in the schedule of the property given in the warrant strict compliance with the
provisions of law is necessary to make the attachment valid.
4. Attention to compliance with legal formalities—The attention of all Civil Courts is drawn
to the necessity of making it a point to scrutinize the service of warrants of attachment before
they take further action with regard to the sale or temporary alienation of the property
attached. The attachment of land and houses requires particular care and the Court should
thoroughly satisfy itself that all the formalities necessary for a legal attachment, have been
complied with. Failure to comply with these legal formalities may constitute material
irregularity, within the meaning of Order XXI, Rule 90 Code of Civil Procedure, and may
cause very serious trouble and loss to the parties later on. It should be noted that a copy of the
attachment order is first to be affixed on the property and then upon the Court house. All
Courts will, therefore, require the Reader to record a note on the warrant of attachment or on
file, that the specific formalities required by Law in the case, have been actually complied
with. The Presiding Officer will carefully scrutinize such note and initial it in token of its
correctness.

6. Precept—Upon the application of a decree-holder, the Court which passes a decree may
issue a precept to another Court to attach the judgment-debtor‟s property, when this course is
convenient, provided that the Court to which the precept is issued is competent to execute the
decree (see Section 46, Code of Civil Procedure).

7. Effect of dismissal of execution position—Where the Court for any reason, passes any order
dismissing the application for execution of the decree, the Court shall direct whether the
attachment shall continue or cease and shall also indicate the period up to which such
attachment shall continue or the date on which such attachment shall cease (Order 21, Rule
57).

Determination of Attachment- The attachment automatically ceases where the Court for any
reason has dismissed the application for execution of the decree (and has omitted to give and
discretion to that effect).Removal of attachment after satisfaction of the decree—In the
following circumstances, the attachment may be terminated:

(1) When all the costs and charges of the decretal amount are paid into the Court.

(2) Satisfaction of the decree is otherwise made through the Court or certified to the Court.
(3) The decree is set aside.

(4) On furnishing the required security by the J.D.

(5) By compromise between the parties.

(6) By an express order withdrawing or putting an end to the attachment.

(7) By sale of the attached property in execution of the decree.

(8) By abandonment of the attachment by the decree-holder.

8. Notification—The Central Government has issued the following notification under Section
60(1)(L) of the Civil Procedure Code:

The 2nd October, 1940 No. 186/37. In pursuance of Clause (L) of the proviso to sub-section
(1) of Section 60 of the Code of Civil Procedure 1908 (Act V of 1908), the Central
Government is pleased to declare that the following allowance payable to any public officer in
the service of the said Government, or any servant of a Federal Railway or of a Cantonment
authority or of the port authority of a major port, shall be exempt from attachment by order of
a Court, namely:

(1) All kinds of travelling allowances.

(2) All kinds of conveyance allowances.

(3) All allowances granted for meeting the cost of:

(a) Uniforms; and

(b) Rations.

(4) All allowances granted as compensation for higher cost of living in localities considered
by Government to be expensive localities including hill stations.

(5) All house rent allowances.

(6) All allowances granted to provide relief against the increased cost of living.
(7) A foreign allowance or, in the case of heads of Diplomatic missions, frais de
representation, assigned to officer serving in posts abroad.

9. Officer to whom notices of attachment of salary etc. may be given under Order XXI, Rule
48—In pursuance of sub-rule (1) of Rule 48 of Order XXI of the First Schedule to the Code of
Civil Procedure, 1908 (V of 1908), the Central Government hereby appoints the officers
specified in column 1 of the table below as officers to whom notices of orders attaching the
salaries and allowances of the officers specified in the corresponding entries in column 2 of
the said table shall be sent.

SALE OF PROPERTY

A decree may be executed by attachment and sale or sale without attachment of any property.
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of
movable and immovable property.

Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an attachment
under order 60.

Any court executing a decree may order that any property attached by it and liable to sale, or
such portion thereof as may seem necessary to satisfy the decree shall be sold, and the
proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under
the decree to receive the same.

This rule enjoins that in all execution proceedings the court has to enquire whether sale of part
of the property would be sufficient to satisfy the decree. This is not just a discretion but an
obligation and a mandate of the legislature. The sale held in contravention of this mandatory
requirement is illegal and without jurisdiction.7

A duty is thus cast upon the court to sell such property or a portion thereof as necessary to
satisfy the decree. “it is a mandate of the legislature which cannot be ignored”. Rule 65 enacts
that very sale in execution of a decree shall be conducted by an officer of the court by public
auction.

Proclamation of sale: Rule 66-67

It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says
that people can participate in auction and sale. After the property is attached and ordered to be
sold by the public auction, the first step to be taken by the court is to cause a proclamation of
the intended sale to be made in the language of the court. 8 Proclamation can be in writing or
by customary mode.

Contents of proclamation:-

1. Time and place of sale

2. Property to be sold

3. Revenue, if any, assessed upon the property;


7
Ambati Narasayya v. M Subba Rao, 1989 Supp(2) SCC 693
8
Deshbandhu Gupta v N.L.Anand, (1994) 1 SCC 131
4. Encumbrance, if any, to which property is liable;

5. Amount to be recovered;

6. Details relating to property, such as title deed, length etc.

Time of sale: Rule 68

No sale without the consent in writing of the judgement-debtor can take place before fifteen
days in case of immovable property and before 7 days in case of movable property from the
date of proclamation in the courthouse. A sell can be conducted immediately if the property is
of perishable nature.

Adjournment of Sale: Rule 69

If the judgement-debtor after the issue of proclamation and before sell has paid the amount, or
has partly promised to pay on the given date before completion of public order, if there is any
justified reason, in those circumstances, court has discretionary power to postponed the sell. If
it has been postponed for period of 30 days, fresh proclamation has to be issued and again the
process of rule 67, 68 and 69 will follow.

Sell cannot be postponed where judgement-debtor dies before the date of sell or after the issue
of proclamation, or on the date of auction.

Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the property
sold in execution of his own decree. A mortgagee of immovable property cannot, without the
leave of the court, purchase the property sold in execution of decree on the mortgage. Any
officer or other person having any duty to perform in connection with the execution sale
cannot either directly or indirectly, acquire or any attempt to acquire any interest in the
property sold in execution.

Sale of Movable Property: Rule 74-78

Rules 74 and 75 relates to the sale of agricultural produce and growing crops. In the case of
agricultural produce, the sale shall be held on or near the land on which the crop is standing or
where the crop has been harvested, at or near the place where the crop is lying. 9 The court may
however, direct the sale to be held at the nearest place of public resort, if it is of the opinion
that the produce may fetch better price.

Rule 76 covers negotiable instruments and shares. In the case of a negotiable instrument or a
share in corporation, the court has power to order sale through broker instead of by public
auction. On such sale, the purchaser acquires a title. 10

Rule 77 covers the payment of price. The price of the property shall be paid at the time of sale.
On payment of price, the sale becomes absolute. Confirmation of sale by the court is not
necessary as in the case of sale of immovable property. 11 In case of default by the purchaser in
payment of price, the property will forthwith be resold and the defaulting purchaser would be
liable for the deficiency in price on such release.

Rule 78 covers Irregularity in Sale. It provides that a sale of movable property in execution of
a decree cannot be set aside on the ground of irregularity in publishing or conducting the
sale.12 Violation of provisions relating to the sale of movable property does not ipso facto
make the sale void. The petitioner has to show that substantial injury has been sustained by
him.13 But where objections have been raised by the judgement-debtor which may go to the
root of the matter, they must be decided prior to the holding of the auction-sale. Failure to do
so would vitiate the sale.

Sale of Immovable Property: Rule 82-94

Rules 82 to 94 of Order 21 deal with sale of immovable property. Rule 83 enables the
executing court to postpone sale to enable the judgement-debtor to raise decretal dues by

9
Lakshmibai v. Santapa Revapa Shintre, ILR (1889) 13 Bom 22
10
Balkrishan Gupta v. Swadeshi Polytex Ltd, (1985) 2 SCC 167
11
Sebastian v. Official Reciever, 1968 KLJ 381
12
Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300
13
Jaswantlal Natwarlal v. Sushilaben Manilal, 1991 Supp (2) SCC 691
private alienation. Rule 84-85 provide for payment of purchase money by auction-purchaser.
Rule 86 talks about cases of default by auction-purchaser in making requisite payment and
resale of property. Rule 89-91 and 93 deals with setting aside sale and effect thereof. Rules
92-94 provide confirmation of sale and issuance of sale- certificate. Section 65 declares the
effect of sale.

Rule 83 covers postponement of sale. The court may postpone sale to enable the judgment-
debtor to raise the decretal amount by private alienation, such as, sale, mortgage, charge,
lease, etc. the chief object of this provision is to prevent sale of the property of the judgment-
debtor in cases where the decree can be satisfied by private alienation of such property.
Postponement of sale is at the discretion of the court and cannot be claimed by the judgment-
debtor as of right.14

Rule 84-87 talk about deposit and payment of price. Immediately after the sale of immovable
property the person declared to be the purchaser of the property must deposit 25% of purchase
money, unless such requirement is dispensed with by the court. The provision regarding the
deposit is mandatory and non-compliance with it will make the sail a nullity. 15

CONCLUSION

From the above discussion it clearly appears that execution is the enforcement of decrees and
orders by the process of court, so as to enable the decree-holder to realise the fruits of the
decree. The execution is complete when the judgement-creditor or decree-holder gets money
or other thing awarded to him by the judgement, decree or order. Order 21 of the code contain
elaborate and exhaustive provision for execution of decrees and order, take care of different
type of situation and provide effective remedies not only to the decree-holder and judgement-
debtors but also to the objectors and third parties.

A decree can be executed by various modes which include delivery of possession, arrest and
detention of the judgement-debtor, attachment of the property, by sale, by appointment of

14
N.K.R.R.M. Chetty Firm v. M. Subraya Mudaliar, AIR 1925 Rang 271
15
Manilal Mohanlalv. Sardar Sayed Ahmed, AIR 1954 SC 349
receiver, partition, cross-decrees and cross-claims, payment of money etc. On exceptional
situation, where provisions are rendered ineffective or incapable of giving relief to an
aggrieved party, he can file suit in civil court.

BIBLIOGRAPHY

Books:-

Websites:-

You might also like