CODE OF CIVIL PROCEDURE- II

PROJECT REPORT
TOPIC- Attachment as a mode of Execution of
Decree

SUBMITTED TO – Dr. Karan Jawanda

SUBMITTED BY – Riya Khanna

CLASS – B.A.LL.B. (HONS.), Semester-8

ROLL NO. – 25/19

SECTION – A

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 ACKNOWLEDGEMENT
I have put in all my efforts in this project. However, it would have not been possible without the
kind support and help of our Professor Dr. Karan Jawanda (Assistant Professor) UILS, Panjab
University, Chandigarh. I am ineffably indebted to her for her conscientious guidance and
encouragement that has helped me to accomplish this project on the topic- “Attachment as a mode
of execution of decree”. I am overwhelmed in all humbleness and gratitude to exhibit my sincere
and heartfelt obligation towards all personages who have helped me in this endeavor. Without their
active guidance, help, cooperation and encouragement, I would not have made headway in this
project.

I would also like to extend my heartfelt gratitude to University Institute of Legal Studies for giving
me this opportunity. I also acknowledge with deep sense of reverence my gratitude towards my
parents who have incessantly supported me to undertake this project. At last, heartfelt gratitude
goes to all my friends who have directly or indirectly helped me to complete this project within
the limited time frame.

Thank You

Riya Khanna

B.A.LL.B. (Hons.)

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 CERTIFICATE
This is to certify that the project entitled, “Attachment as a mode of execution of decree”
submitted by Riya Khanna [B.A.LL.B. (Hons.)] is an authentic work carried out under the
supervision and able guidance of Dr. Karan Jawanda, Assistant Professor, University Institute of
Legal Studies, Panjab University, Chandigarh.

The matter embodied in the project has not been plagiarized or submitted to any other
university/institute for the award of any degree or diploma. It is a bonafide record of independent
record done by Riya Khanna and submitted to University Institute of Legal Studies, Panjab
University in partial fulfillment for the award of degree of B.A.LL.B. (Hons.).

SUBMITTED TO: SUBMITTED BY:

DR. KARAN JAWANDA RIYA KHANNA

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

UILS, PU SEC-A, (25/19)

CHANDIGARH SEMESTER- 8

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 INDEX
SERIAL NO. CONTENTS PAGE NO.
1. Table of Cases 5

2. Introduction 6

3. Nature and Scope 7

4. Object of Attachment 7

5. Properties Which Can Be 8

Attached

6. Properties Which Cannot 8

Be Attached

7. Modes of Attachment 12

8. Precepts 15

9. Limitations to Precepts 15

10. Garnishee Order 17

11. Effects of Attachment 20

12. Private Alienation to 20

Property after
Attachment

13. Conclusion 22

14. Bibliography 23

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 TABLE OF CASES
Chimandas v. Mahadevappa Firm, AIR 1961 AP 417……………………………………….10
Gurdial Singh v. Khazan Chand, AIR 1936 Lah 486………………………………………...10
M.A.A. Raoof v. KG Lakshmipathi, AIR 1969 Mad 268……………………………………..4
Mahadeo Prasad v. Ram Lochan, (1980) 4 SCC 354………………………………………….4
Mela Mal v. Bishan Das, AIR 1931 Lah 723………………………………………………...10
Pradyut Shah AIR 1979 Bom 166……………………….…………………………………...14
Rai Kissenji v. Sri Kissen, AIR 1940 Cal 26………………………………………………...10
Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693...............................................14
State of Punjab v. Dina Nath (1984) 1 SCC 137........................................................................5
Subbarao v. Official Receiver AIR 1965 A.P. 52....................................................................13
Surinder Nath v. Union of India 1988 Supp SCC 626……………………………………….11

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INTRODUCTION

The Code lays down various modes of execution of decrees. After the decree-holder files an
application for execution of a decree, the executing Court can enforce execution. The substantive
provision as provided under Section 51 “merely enumerates different modes of execution in
general terms, while the conditions and limitations under which alone the respective modes can be
availed of are prescribed further by different provisions”.1

A decree may be enforced by delivery of any property specified in the decree, by attachment and
sale or by sale without attachment of any property, or by arrest and detention in civil prison of the
judgment-debtor or by appointing a receiver or by effecting partition or in such manner as the
nature of the relief may require. 2

A decree may be executed on the application of the decree-holder by attachment and sale. The
Code recognizes the right of decree-holder to attach the property of the judgment-debtor in
execution proceedings and lays down the procedure to effect attachment. Section 60 to 64 and
Rules 41 to 57 of Order 21 deal with the subject of attachment of property.

1 Mahadeo Prasad v. Ram Lochan, (1980) 4 SCC 354

2 Section 51

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NATURE AND SCOPE

In case of a decree from a Court, the Court may require the defendant to pay any sum to the
plaintiff. In case the defendant fails to do so, the Court can in execution of its decree, attach the
movable and immovable properties of the defendant and recover the amount due by disposal of
these assets. Section 51(b) empowers the Court to order execution of decree by attachment and
sale of property. An executing Court is competent to attach the property if it is situated within the
local limits of the jurisdiction of the Court. 3 The place of business of the judgment-debtor is not
material.

The words “attachment” and “sale” in Section 51 are to be read disjunctively and not conjunctively.
Hence, attachment is not a condition precedent and sale of property without attachment is merely
an irregularity and does not vitiate the sale. 4 The procedure of the Code, however, does not affect
any special or local law. Attachment and sale under any other Statute, therefore, can be made and
the judgment-debtor cannot claim under the Code.

OBJECT OF ATTACHMENT

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 manner deal
with the property of the judgment-debtor attached in execution proceedings. At the same time, it
protects a judgment-debtor by granting exemption to certain properties from attachment and sale.5

3 M.A.A. Raoof v. KG Lakshmipathi, AIR 1969 Mad 268

4 MK Jain, (2nd Ed., 2007), The Code of Civil Procedure, New Delhi, India: Wadhwa & Company Nagpur
5 Ameer Ali Woodroffe (3rd Ed., 1987) Code of Civil Procedure (Vol 1& 3), New Delhi, India: Law Publishers

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PROPERTIES WHICH CAN BE ATTACHED

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 properties (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.

Thus, the property liable to be attached may be lands, houses or other buildings, goods, money,
bank notes, cheques, bills of exchange, promissory notes, Government bonds, securities, shares in
a corporation and other than the assets expressly excluded, all other saleable property-both
movable and immovable.6

The property may be held in the name of judgment-debtor, by a trustee for his benefit or in his
behalf. In State of Punjab v. Dina Nath 7, wherein the right to officiate at funeral ceremonies was
held to be not saleable, it was stated by the Supreme Court that Section 60 of the Code of Civil
Procedure8 is not exhaustive and specific non-inclusion of a particular species of property under
Section 60 is therefore, not of any consequence if it is ‘saleable’9 otherwise.

PROPERTIES WHICH CANNOT BE ATTACHED

The proviso to Section 60(1) 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:

1. PERSONAL PROPERTY:

▪ Clothes, cooking vessel, beds of the judgment-debtor, wife and children and personal ornaments
which as per religious usage cannot be parted with by any woman.

▪ Tools of artisans: As per Court decisions, it only includes movable tools and not immovable
tools.10

6 Supra Note 4
7 (1984) 1 SCC 137.
8 Hereinafter referred to as CPC
9 ‘Saleable’ as used in this Section means saleable by auction under the orders of a Court.
10 Supra Note 3

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▪ If the judgment debtor is an agriculturalist, his implements of husbandry and such cattle and seed
grain as the Court deems fit to enable him to earn his livelihood as such and such portion of
agricultural produce or of any class of agricultural produce which may have been declared to be
free from liability.11

▪ Houses and other buildings along with the materials and the land appurtenant thereto which is
necessary for their enjoyment, which belongs to an agriculturalist, laborer or any domestic servant
and is occupied by him.

▪ All moneys payable under a policy of insurance on the life of judgment-debtor. In certain cases,
policies for the benefit of judgment-debtor’s wife and children under the Married Woman’s
Property Act, 1874 are free from attachment.

▪ Tenancies in respect of a residential building covered by the provisions of any Rent Control Act.

2. SALARIES:

▪ Stipends and gratuities allowed to pensioners of the Government or of a local authority or of any
other employer or payable out of any notified service family pension fund and political pension.

▪ The wage of laborers and domestic servants, whether payable in cash or kind.

▪ Salary to the extent of the first Rs 1000 and 2/3 of the balance in execution of any decree other
than a decree for maintenance. If any part of the attachable salary has been under attachment, for
24 months, then such portion shall be exempt from attachment until the expiry of a further period
of 12 months. Where the attachment has been made in execution of one decree, it shall, after the
attachment has continued for a total period of 24 months, be finally exempt from attachment in
execution of that decree.

▪ 1/3 of a salary in execution of any decree for maintenance.

11 Section 61

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▪ Salary payable to persons covered by the Air Force Act, 1950, the Army Act, 1950 and the Navy
Act, 1957.

▪ All compulsory deposits and other sums in or derived from any fund to which the Provident
Funds Act, 1925 or the Public Provident Fund Act for the time being applies, in so far as they are
declared by the acts as not liable for attachment.

▪ Any allowance forming part of the emoluments of any servant of the Government/railways/local
authority which has been notified to be exempt from attachment and any substance grant or
allowance made to any such servant while under suspension.

▪ Any allowance declared by Indian law to be exempt from liability to attachment or sale in
execution of a decree.

3. INCORPOREAL PROPERTY:

▪ A mere right to sue for damages

▪ Any right of personal service

▪ An expectancy of survivorship or other merely contingent or possible right or interest

▪ A right to future maintenance

▪ Where the judgment debtor is a person liable for payment of land revenue, any movable property
which, under any law for the time being applicable to him is exempt for sale for the recovery of
an arrears of such revenue.

▪ Books of account

▪ 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. Further by the Amendment Act of 1976,
a new Sub-section 1-A has been inserted on the recommendation of Law Commission. 12 It now

12 Supra Note 5

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specifically provides that any agreement to waive the benefit of any exemption under Section 60
shall be void.

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MODES OF ATTACHMENT

Rules 43 to 54 of Order XXI lay down the procedure for attachment of different types of movable
and immovable properties.

TYPE OF PROPERTY MODE OF ATTACHMENT

1. Movable Property (other than agricultural As per Rule 43 by actual seizure
produce) in possession of judgment debtor thereof. But if such property is
perishable, or the expense of keeping
it is likely to exceed its value, it may
be sold.

2. Movable property consisting of livestock, As per Rule 43-A, by leaving the

agricultural implements or other articles which same in custody of a respectable
cannot be conveniently be attached person as the “custodian”

3. Movable property not in possession of the As per Rule 46(1)(c), by an order

judgment debtor prohibiting the person in possession
thereof from giving it to the
judgment-debtor

4. Negotiable instrument neither deposited in a As per Rule 51, by actual seizure and
Court nor in the custody of a public officer bringing it into Court

5. Debt not secured by a negotiable instrument As per Rule 46(1)(a), by an order

prohibiting the creditor from
recovering the debt and the debtor
from paying the debt

6. Share in the capital of a Corporation As per Rule 46(1)(b), 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 belonging As per Rule 47, by a notice to the
to the judgment-debtor and another as co- judgment-debtor prohibiting him
owners from transferring or charging it

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 8. Salary or allowance of a public servant or a As per Rule 48, by an order that the
private employee amount shall (subject to provision of
Section 60) be withheld from such
salary or allowances either in one
payment or by monthly instalments

9. Partnership Property As per Rule 49, by making an order:

i i. Charging the interest of the
partner in the partnership property;
ii ii. Appointing a receiver of
the share of the partner in profits;
iii iii. Directing accounts and
inquiries; and
iv iv. Ordering sale of such
interests

10. Property in custody of court or public officer As per Rule 52, by notice to such
court or of officer, requesting 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

enforcement of a mortgage or charge-

As per Rule 53(1)(a), by an order of

a) Passed by the Court executing the decree such Court

As per Rule 53(1)(b), by issuing a

b) Passed by another Court notice to such Court requesting it to
stay the execution thereof

As per Rule 53(1)(c), by issuing a

c) Decree other than that mentioned above notice to such Court requesting it to
stay execution thereof

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 12. Agricultural Produce As per Rule 44, by affixing a copy of
warrant in case of growing crop on
land on which such crop has grown
and in case of a ready crop, the place

13. Immovable property As per Rule 54, by an order

prohibiting the judgment-debtor from
transferring or charging it in any
manner and all persons taking any
benefit from such transfer or charge.

Section 62 of the CPC provides that an attachment of movable property in a dwelling house cannot
be made by entering the house after sunset and before sunrise. Further it states that no outer door
of such dwelling house shall be broken unless such house is occupied by the judgment-debtor. The
outer door can be broken open if the judgment-debtor refuses to open the door or in any way
prevents access.

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

decrees by several Courts. In case the property is under attachment in execution of decrees of more
than one Court, the Court who shall receive or realize such property and determine any claim with
respect to it and any objection to the attachment shall be the Court of highest grade. If there exists
no such Court, then the matter is to be decided by the Court under whose decree the property was
first attached.

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 PRECEPTS

A Precept means a command, an order or a warrant. It 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.13 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.

It was observed in Gurdial Singh v. Khazan Chand, 14 that the 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. Thus, it prevents the alienation of property of a
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.

However, an order of precept is merely a step taken to facilitate execution, and not an order
transferring a decree for execution. 15 Thus, the effect of the attachment in pursuance of a precept
is as a general rule, limited to two months unless the case is covered by the proviso.

LIMITATIONS TO PRECEPT:

1. There can be no order of permanent attachment by way of precept. Thus, an order of permanent
attachment is illegal. 16

2. The 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. 17

13 Ibid Note 10
14 AIR 1936 Lah 486
15 Rai Kissenji v. Sri Kissen, AIR 1940 Cal 26
16 Gudial Singh’s case Supra Note 13
17 Chimandas v. Mahadevappa Firm, AIR 1961 AP 417

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3. No attachment can be affected under this Section where the property is situated outside India. 18

18 Mela Mal v. Bishan Das, AIR 1931 Lah 723

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 GARNISHEE ORDER

The concept of 'garnishment' has been introduced in CPC by the Amendment Act, 1976. This term
‘garnish’ has been derived from the French word 'garnir' which means to warn or to prepare. In
simple words the garnishee is the person who is liable to pay a debt to judgment debtor or to deliver
any movable property to him. Besides judgment debtor and decree holder, garnishee is a third
person in whose hands debt of the judgment debtor is kept.

Garnishee order is an order passed by an executing Court directing or ordering a garnishee not to
pay money to judgment debtor since the latter is indebted to the garnisher (decree holder). It is an
order of the Court to attach money or goods belonging to the judgment debtor in the hands of a
third person. The third party is known as 'garnishee' and the Court's order is known as garnishee
order. It is a remedy available to the decree holder. This order may be made by the order of the
Court to holders of funds, i.e. a third party that no payments have to be made until the Court
authorizes them.19 The purpose of the order is to protect the interest of the decree holder. This is
an order served upon a garnishee requiring him not to pay or deliver the money or property of the
debtor (defendant) to him and/or requiring him to appear in the court and answer to the suit of the
plaintiff to the extent of the liability to defendant.

The power of the Court enshrined under Rule 46A to issue Court notice, is discretionary and the
Court may refuse to pass such order if it is inequitable and the Court apprehends that it can cause
prejudice to the garnishee, or that the grounds of the application seeking that remedy is not
sufficient or if the affidavit is filed by decree holder is frivolous or ambiguous, etc. The discretion,
however, must be exercised judicially.20 Where the Court finds that there is bona fide dispute
against the claim and the dispute is not false or frivolous, it should not take action under this rule.

The executing Court has been given power to recover any of the amounts of the judgment debtor,
which is in the hands of other. The rule of 46A requires a notice to be issued to a garnishee before
a garnishee order is passed against him. Thus, it was observed in Surinder Nath v. Union

19
Ibid Note 4
20
Vinay Kumar Gupta (14th Ed., 2005), Mulla’s Civil Procedure Code, New Delhi, India: Lexis Nexis Butterworhts,
Wadhwa Nagpur

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of India21, that if such notice is not issued and an opportunity of hearing is not afforded before
passing an order, the order would be null and void. In the eyes of law, there is no existence of such
an order and any step taken pursuant to or in enforcement of such an order would be void.

Order XXI Rule 46B:

It empowers the Court, in case the garnishee does not appear and show cause against the notice
under Rule 46A to order him to comply with the terms of the notice and on such an order, execution
may be issued.22 Such an order is to be deemed to be a decree against the garnishee and in favour
of the judgment creditor. The further proceedings are in execution of that decree and against the
garnishee. The power to make such an order is discretionary and may be refused on sufficient
grounds such as where the judgment debtor’s interest in the debt is not personal but is in the
capacity as a trustee. 23

Order XXI Rule 46C:

If the garnishee disputes indebtness to the judgment-debtor or alleges that the debt is not attachable
debt, the Court must order an issue to be raised and tried. Even if there is reasonable doubt, the
matter must be tried.

Order XXI Rule 46D:

Under this rule, if the debt belongs to a third person, the Court has to make an order directing such
a third person to appear and state his claim to such a debt and prove the same. The words ‘where
it is suggested or appears to be probably’ would mean that either the garnishee points it out or that
it appears to the Court from the record before it. 24 Further, the Court is empowered to pass its order
with respect to the same under Order XXI Rule 46E.

Order XXI Rule 46F:

The object of this rule is to discharge the garnishee from his liability to his own creditor, judgment
debtor and any other person ordered to appear under Rule 46D for the amount paid or levied. The

21 1988 Supp SCC 626

22 AN Saha, (2006), The Code of Civil Procedure, 1908 (Vol 1), Allahabad, India: Premier Publishing Co.
23 Supra Note 20
24 Sarkar, S.C, The Law of Civil Procedure (7th Ed, Vol. I), Calcutta: S.C. Sarkar and Sons Private Limited, 1986)

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words under Rule 46A or under any such order as aforesaid mean that the garnishee gets discharge
of his liability only if payment by him is made under Rule 46A or under an order made under Rule
46B, 46C, 46E.25 Accordingly if garnishee makes payment, not under the garnishee proceedings,
but by way of private agreement, he would not get a valid discharge under this Rule. The garnishee
gets a valid discharge although the decree in execution of which the application is made under
Rule 46A or the order passed in the proceedings under such an application, is set aside or reversed.

Order XXI Rule 46G provides that the cost of garnishee proceedings is at the discretion of the
Court.

Order XXI Rule 46H states that orders passed in garnishee proceedings are appealable as
‘decrees’.

25 Supra Note 22

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EFFECT OF ATTACHMENT

An attachment does not create any title of the decree-holder to the property nor does it create a lien
or charge over the property for the sum due to the decree-holder. The judgment-debtor continues
to enjoy the property. All that an attachment does is to prevent a private transfer and that no person
can benefit from a subsequent transfer of the attached property.

Section 64 of the CPC makes it manifest that attachment has merely the effect of preventing private
alienation to the prejudice of claims under attachment. It conveys no title, charge, lien or priority
in favour of the attaching creditor. 26 In fact, in Subbarao v. Official Receiver 27 the Andhra Pradesh
High Court while dealing with the involuntary sale of the judgment-debtor’s flat under a decree of
a Court, stated that an order of attachment does not prevent a transfer by operation of law and nor
does it create any interest or lien.

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT:

SECTION 64

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 the entire
world, but is void against the claims enforceable under the attachment. Section 64(2) as inserted
by the Amendment Act of 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 the 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 had acted in good faith or not. 28 But if the sale deed was executed
prior to attachment before judgment, it can be registered subsequently and will prevail over the
judgment.

26 Supra Note 14
27 AIR 1965 A.P. 52
28 AK Banerjee, (2007), Commentary on the Code of Civil Procedure, 1908 (Vol. 2), Allahabad, India: Dwivedi & Co

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The provision interferes with the right of the owner in alienating his property and hence, should
be construed strictly. Since, the provision is for the benefit of attaching creditor, he can waive the
benefit.29 In the case of Pradyut Shah30 it was held that Section 64 applies whether the property
stands in the name of judgment-debtor or any other person who is a name lender i.e., a benami
property. However, if the transfer is by operation of law or pursuant to a Court’s order, Section 64
does not apply. It only covers private transfers, such as, voluntary sales, gifts, mortgages.

29 Ibid Note 28
30 AIR 1979 Bom 166

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CONCLUSION

“It has been said that the difficulties of a litigant begin when he has obtained a decree” 31

The execution process, which commences with the filing of an application for execution, aims at
the enforcement of a decree by a judicial process. Aware of the fact that a number of obstacles are
placed in the way of a decree-holder, who seeks to execute his decree against the property of the
judgment-debtor, the CPC provides for elaborate rules and procedures for the execution of decrees.

In an attempt to enable the decree-holder to realize the fruits of the decree passed by the competent
court in his favour, the Code allows for the attachment and sale of the properties of judgment-
debtor as one amongst the various modes of executing a decree. Thus, in an attempt to ensure that
attachment and sale of the property of the judgment-debtor remains a viable and effective mode of
execution of decrees the CPC has prescribed different procedures for the attachment and sale of
movable and immovable properties in execution of money decrees. This is best illustrated in the
prescription of actual seizure of the property in cases of attachment of movable property, as in
these cases a very real threat exist that the property might escape the jurisdiction of court.

31 Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693

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BIBLIOGRAPHY

▪ Banerjee, A.K (2007), Commentary on the Code of Civil Procedure, 1908 (Vol. 2), Allahabad,
India: Dwivedi & Co

▪ Gupta, Vinay Kumar (14th Ed., 2005), Mulla’s Civil Procedure Code, New Delhi, India: Lexis
Nexis Butterworhts, Wadhwa Nagpur

▪ Jain, M.K. (2nd Ed., 2007), The Code of Civil Procedure, New Delhi, India: Wadhwa &
Company Nagpur

▪ Saha, A.N (2006), The Code of Civil Procedure, 1908 (Vol 1), Allahabad, India: Premier
Publishing Co.

▪ Sarkar, S.C, The Law of Civil Procedure (7th Ed, Vol. I), Calcutta: S.C. Sarkar and Sons Private
Limited, 1986)

▪ Takwani, C.K (6th Ed., 2011) Civil Procedure, Lucknow, India: Eastern Book Company

▪ Woodroffe; Ameer Ali (3rd Ed., 1987) Code of Civil Procedure (Vol 1& 3), New Delhi, India:
Law Publishers.

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