University Institute of Legal Studies

Panjab University

Assignment on

“Attachment of Property

In

Execution Proceedings”

SUBMITTED BY: SUBMITTED TO:

Tanish Dahuja Dr. KARAN JAWANDA

B.A. LL.B. (Hons.) ASSISTANT PROFESSOR

Semester – 8TH Section- A UILS

Roll No. 32/18 CHANDIGARH

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Karan Jawanda who
gave me the golden opportunity to do this wonderful assignment on the topic “Attachment of
Property in Execution Proceedings”, which also helped me in doing a lot of research and I
came to know about so many new things, I am really thankful to her.

Secondly, I would also like to thank my seniors and friends who helped me a lot in providing
resources and finalizing this assignment within the limited time frame.

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Serial Particulars Page-
No. No.
1. Introduction 4
• What is attachment
2. Nature and scope 4
3. Object 5
4. Property which can be attached: Section 60 5
5. Property which cannot be attached: Sections 60-61 6
6. Modes of attachment: Section 62; Order 21 Rules 43-54 7-8
7. Precept: Section 46
(a) Meaning
8-9
(b) Nature and scope
(c) Object
(d) Limitations
8. Garnishee order: Rules 46-A-46-1
(a) General
(b) Meaning
(C) Illustration
(d) Object
(e) Doctrine explained
9-11
f) Notice
(g) Effect of payment
(h) Failure to pay
(i) Costs
(j) Appeal
k) Wrongful garnishment

9. Determination of attachment Rules 55-58 11-12

10. Private alienation of property after attachment: Section 64
(a) Nature and scope
(b) Object
(c) Interpretation 12-13
(d) Private transfer: Meaning
11. References 14

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INTRODUCTION-

Every civil suit is accompanied by three stages which starts from the initiation or institution of
suit, adjudication of suit and finally the implementation of the litigation. The implementation
of the litigation is the step in which the results of the adjudication are put into action, hence
this stage is known as the execution. It is the process of enforcing or giving effect to the order
or judgment passed by the court of justice.

It is the enforcement of the decree through the judicial process and allows the decree holder to
benefit from the fruits of the decree passed by a competent court in his favour.

A decree may also be executed on the application of the decree-holder by attachment and sale
or by sale without attachment of property. The Code recognises the right of the decree-holder
to attach the property of the judgment-debtor in execution proceedings and lays down the
procedure to effect attachment.

What is Attachment? Attachment is a legal process by which a court of law, at the request of
a creditor, designates specific property owned by the debtor to be transferred to the creditor, or
sold for the benefit of the creditor.

The property belonging to the judgment debtor or the property over which, or the profits of
which, he has disposing power which he may exercise for his own benefit, is liable to
attachment and sale in execution of a decree.

Sections 60 to 64 and Rules 41 to 57 of Order 21 deal with the subject of attachment of

property.

NATURE AND SCOPE

The Code enumerates properties which are liable to be attached and sold in execution of a
decree.1 Likewise, it also specifies properties which are not liable to be attached or sold. 2 It
also prescribes the procedure where the same property is attached in execution of decrees by

1
S.60(1)
2
Proviso to S.60(1)

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more than one court.3 The Code also declares that a private alienation of property after
attachment is void.4

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

The provisions of the Code, however, do not affect any special or local law.' Attachment and
sale under any other statute, therefore, can be made and the judgment-debtor cannot claim
benefit under the Code.

OBJECT

The primary object of attachment of 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 proceedings.5 At
the same time, it protects a judgment-debtor by granting exemption to certain properties from
attachment and sale.10

Keeping in mind the intention underlying the provisions, the words "attachment" and "sale"
are to be read disjunctively and not conjunctively.6

Hence, attachment of property is not a condition precedent7 and sale of property without
attachment is merely an irregularity and does not vitiate the sale. 8

PROPERTY WHICH CAN BE ATTACHED:

SECTION 60 Section 60(1) declares which properties are liable to attachment and sale in
execution of a decree, and which properties are exempt therefrom. All saleable property
(movable or immovable) belonging to the judgment-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.4 The section is not exhaustive. Specific non-

3
S.63
4
S.64
5
Statement of Objects and Reasons, Gazette of India, dt. 1-4-1976, Pt. 11
6
Amulya Chandra v. Pashupati Nath, AIR 1951 Cal 48 (FB); Nar Singh Datt v. Ram Pratap, AIR 1961 All 436.
7
Krishnamukhlal v. Bhagwan Kashidas, AIR 1974 Guj 1.
8
Haji Rahim Bux & Sons v. Firm Samiullah & Sons, AIR 1963 All 320.

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inclusion of a particular species of property under Section 60 is, therefore, not of any
consequence if it is saleable otherwise.

5. PROPERTY WHICH CANNOT BE ATTACHED: SECTIONS 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 judgment-debtor may claim the benefit of more than one clause if he is
qualified to do so.9

Waiver of Benefit of proviso to Judgement Debtor- There was a conflict of judicial opinion
as to whether a judgment-debtor can waive the benefit conferred on him by the proviso. One
view was that since it was intended for the benefit of the judgment-debtor he can waive it.10

Another view was that it was based on public policy and, therefore, cannot be waived by him.11

Present Position-By the Amendment Act of 1976, new sub-section (1-A) has been inserted on
the recommendation of the Law Commission.12 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
even after execution of a decree. [Section 60(1)(b)].

9
Municipal Corpn. of Rangoon v. Ram Behari, AIR 1939 Rang 432; Ram Singh v. Bherulal, AIR 1982 MP 95.
Radhey Shyam v. Punjab National Bank, (2009) 1 SCC 376.
10
Rajindar Kumar v. Chetan Lal, AIR 1940 Lah 65; Uzir Biswas v. Haradeb Das, AIR 1920 Cal 424; Bala
Prasad v. Ajodhya Prasad, AIR 1952 Pat 278; Mahadeo Agrahri v. Dhaunkal Mal, AIR 1946 All 432;
11
Union ofIndia v.Jyoti Chit Fund and Finance, (1976) 3 SCC 607: AIR 1976 SC 1163
12
Law Commission's Fifty-fourth Report at p. 50.

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MODES OF ATTACHMENT: SECTION 62; ORDER 21 RULES 43-54

Rules 43 to 54 of Order 21 lay down the procedure for attachment of different types of movable
and immovable properties. These provisions may be explained by the following chart:

Type of Property Mode of Attachment

1. Movable property (other than By actual seizure thereof. But if such property
agricultural produce) in possession of is perishable, or the expense of keeping it is
the judgment-debtor; likely to exceed its value, it may be sold.
2. Movable property consisting of By leaving the same in the custody of a
livestock, agricultural implements or respectable person as the "custodian.
other articles which cannot conveniently
be attached;
3. Movable property not in possession of prohibiting the person in possession thereof by
the judgment-debtor; an order from giving it to the judgment-debtor.

4. Negotiable instrument neither deposited. By actual seizure and bringing it in a court

nor in the custody of a public officer
5. Debt not secured by a negotiable By an order prohibiting the creditor from
instrument; recovering the debt and the debtor from paying
the debt.
6. Share in the capital of a corporation; By an order prohibiting the person in whose
name the share stands from transferring it or
receiving dividend thereon

7. Share or interest in movable property By a notice to the judgment-debtor prohibiting

belonging to the judgment debtor and him from transferring or charging it
another as co-owners
8. Salary or allowance of a public servant By an order that the amount shall (subject to
or a private employee the provisions of Section 60), be withheld from
such salary or allowances either in one
payment or by monthly instalments.

9. Partnership property;. By making an order: (a) charging the interest

of the partner in the partnership property; (6)
appointing a receiver of the share of the partner
in profits; (c) directing accounts and inquiries;
and (d) ordering sale of such interests
10. Property in custody of court or public By notice to such court or officer, requesting
officer, that such property, and any interest or dividend
thereon, may be held subject to the order of the
court
11. Decree for payment of money or sale in By an order of such court.
enforcement of mortgage or charge (a) By issuing a notice to such court requesting it
passed by court executing the decree to stay execution thereof by issuing a notice (a)
(b) passed by another court to the decree holder prohibiting him from
(c)Decree other than that mentioned transferring or charging it in any way: (6) to the
above

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 executing court from executing it until such
notice is cancelled.

12. Agricultural produce; By () affixing a copy of the warrant (a) in case

of growing crop, on land on which such crop
has grown; and (6) in case of ready crop, the
place at which it is lying; and (i) also by
affixing a copy on the house in which the
judgment-debtor ordinarily resides, carries on
business or personally works for gain, or last
resided, carried on business or personally
worked for gain.
Where application is for the attachment of
growing crop, it shall specify the time at which
is likely to be harvested.° (The object is to
enable the court to make necessary
arrangements for the custody of the crop.)P
13. Immovable property; By an order prohibiting the judgment-debtor
from transferring or charging it in any manner
and all persons from taking any benefit from
such transfer of charge.9

Section 62 No dwelling house may be entered after sunset and before sunrise. No outer door
of it may be broken open, unless it is in the occupancy of the judgment debtor and he refuses
or prevents access thereto. Where a dwelling house is in actual occupation of a pardanashin
woman, reasonable b58 time and facility must be given to her to withdraw.

Section 63 prescribes procedure to be followed in case the property is attached in execution

of decrees by several courts.

PRECEPT: SECTION 46

(a) Meaning "Precept" means "a command", "an order", "a writ" or "a warrant".24

(b) Nature and scope A precept is an order or direction given by the court which passed the
decree to a court which would be competent to execute the decree to attach any property
belonging to the judgment-debtor. Section 46 provides that the court which passed a decree
may, upon an application by the decree-holder, issue a precept to that court within whose
jurisdiction the property of the judgment-debtor is lying to attach any property specified in the
precept.25

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(C) Object The principal object of attachment by precept is to enable the decree-holder to
obtain an interim attachment of the property of the judgment-debtor situate within the
jurisdiction of another court where it is apprehended that the decree-holder may otherwise be
deprived of the fruits of the decree.26 Thus, a precept seeks to prevent alienation of property
of the judgment debtor not located within the jurisdiction of the court which passed the decree
so that interest of the decree-holder is safeguarded and protected.

(d) Limitations An order of precept is merely a step taken to facilitate execution, and not an
order transferring a decree for execution. It is for this reason that the effect of the attachment
in pursuance of the precept is, as a general rule, limited to two months unless the case is covered
by the proviso.13 An order of permanent attachment is, therefore, illegal.

This section applies to matters which arise after a decree has been passed. Hence, it cannot be
invoked in aid of an application for attachment before judgment under Order 38 Rule 5.

Again, no attachment can be effected under this section where the property is situated outside
India.

GARNISHEE ORDER: RULES 46-A-46-I

(a) General

Garnishee proceeding is a proceeding by which the decree-holder seeks to reach money or

property of the judgment-debtor in the hands of a third party (debtor of judgment-debtor). By
this process, an executing court may order a third party to pay to the judgment-creditor (decree-
holder) the debt from him to the judgment-debtor. The payment made by the garnishee pursuant
to the order passed by the executing court is a valid discharge to him against his decree-holder.

(b) Meaning

"Garnishee" means a judgment-debtor's debtor. He is a person who is liable to pay a debt to a

judgment-debtor or to deliver any movable property to him. "Garnisher" (Garnishor) is a
judgment-creditor (decree-holder) who initiates garnishee proceedings to reach judgment-
debtors money or property held or possessed by third party (garnishee). "Garnishment" is a
proceeding by which the decree-holder seeks to get the property of the judgment-debtor.
"Garnishee proceeding" is a judicial proceeding in which a judgment-creditor (decree-holder)

13
Proviso to S. 46(2). Hindustan Bicycles v. Nath Bank, AIR 1957 AP 209

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prays to executing court to direct third party who is a debtor of the judgment-debtor to pay the
amount to the garnisher (decree-holder). "Garnishee order" is an order passed by a court
ordering a garnishee not to pay money to the judgment-debtor because the latter is indebted to
the garnisher.

(c) Illustration

Suppose A owes Rs 1000 to B and B owes Rs 1000 to C. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay to C, since B owes the said
amount to C, who has obtained the order.

(d) Object

The primary object of a garnishee order is to make the debt due by the debtor of the judgment-
debtor available to the decree-holder in execution without driving him to a suit.

(e) Doctrine explained

The Court may, in the case of a debt (other than a debt secured by a mortgage or charge) which
has been attached under Rule 46, upon the application of the attaching Creditor, issue a notice
to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due
from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree
and costs of execution, or to appear and show cause why he should not do so.

The order contemplated by Rule 46-A is discretionary and the court may refuse to pass such
order if it is inequitable. The discretion, however, must be exercised judicially. Where the court
finds that there is a bona fide dispute against the claim and the dispute is not false or frivolous,
it should not take action under this rule.14

If money is payable to the judgment-debtor on certain contingencies, the garnishee cannot be

asked to make payment unless those contingencies take place. Similarly, garnishee proceedings
cannot be taken in respect of a debt which cannot be attached under the Code.3* Where the
garnishee disputes his liability, the court must raise an issue, and determine the liability of the
garnishee. 15

14
Proviso to S. 46(2). Hindustan Bicycles v. Nath Bank, AIR 1957 AP 209
15
. R. 46-C; Mackinnon Mackenzie & Co. (P)Ltd. v. Anil Kumar Sen, AIR 1975 Cal 150. For detailed
discussion and case law, see, Authors' Code of Civil Procedure (Lawyers' Edn.) Vol. IV at pp. 621-36.

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 (f) Notice

Rule 46-A requires a notice to be issued to a garnishee before a garnishee order is passed
against him. If such notice is not issued and opportunity of hearing is not afforded before
passing an order, the order would be null and void. In the eye of the law, there is no existence
of such an order and any step taken pursuant to or in enforcement of such an order would also
be void.16

(g) Effect of payment

The payment made by the garnishee into the court pursuant to such notice shall be treated as
a valid discharge to him as against the judgment-debtor. The Court may direct that such amount
may be paid to the decree-holder towards the satisfaction of the decree and costs of the
execution.17

(h) Failure to pay

Where neither the garnishee makes the payment into the court, as ordered, nor appears and
shows any cause in answer to the notice, the court may order the garnishee to comply with such
notice as if such order were a decree against him.18

(i) Costs

The costs of garnishee proceedings are at the discretion of the court.19

(j) Appeal

Orders passed in garnishee proceedings are appealable as "decrees".20

(k) Wrongful garnishment

A wrongful garnishment may give rise to an action for damages.

DETERMINATION OF ATTACHMENT: RULES 55-58

An attachment under the Code will be determined in the following circumstances:

16
Surinder Nath v. Union of India, 1988 Supp SCC 626 at pp. 634-35: AIR 1988 SC 1777 at p. 1781;
17
Rr. 46-E, 46-F, 46-G.
18
Rr. 46-B, 46-H; see also, State Bank of Bikaner and Jaipur v. District & Sessions Judge, AIR 2005 Raj 246.
19
R. 46-G.
20
R. 46-H.

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i) Where the decretal amount is paid or the decree is otherwise satisfied;
ii) Where the decree is reversed, or is set aside;
iii) Where the court upholds objection against the attachment and makes an order releasing
the property.
iv) Where after the attachment the application for execution is and dismissed,
v) Where the attaching creditor withdraws attachment.
vi) Where the decree-holder fails to do what he is bound to do under the decree.
vii) Where the suit of the plaintiff is dismissed.
viii) Where the attachment is ordered before judgment and the defendant furnishes
necessary security.
ix) Where there is agreement or compromise between the parties;
x) Where the attaching creditor abandons the attachment.

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT: SECTION 64

(a) Nature and scope

Section 64 (1) enacts that a private alienation of property after 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 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.

(b) Object

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 judgment-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 was executed prior to attachment before judgment, it can be registered subsequently
and will prevail over attachment.

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(c) Interpretation The provision interferes with the rights of the owner in alienating his
property and, hence, it should be construed strictly. Again, as the provision is for the benefit of
attaching creditor, he can waive the benefit.

(d) Private transfer: Meaning 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.

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REERENCES

STATUTES
1. Civil Procedure Code, 1908

BOOKS
2. C.K. Takwani, “Civil Procedure with Limitation Act,1963”, Eighth Edition,2017
Eastern Book Company, Lucknow.

WEBSITES
3. Gauri Thampi, “Attachment of Property Under Execution Proceedings”, available at
Attachment of Property Under Execution Proceedings (legalserviceindia.com)
retrieved on 25/05/2021.

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