Attachment of Property

Property that can be attached.

Attachmentis 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 60-64 and rules 41-57 of order 21 of CPC 1908, deal with matter of attachment
of property.

Section 60 brings under its purview property that can be attached and cannot be attached.
All saleable property including lands, houses or other buildings, goods, money, bank
notes, cheques, bills of exchange, hundis, promissory notes, government securities,
bonds or other securities for money, debts, shares in a corporation, and other than the
assets expressly excluded which belongs to the judgment-debtor maybe attached and
sold in execution of a decree against him. The decree as mentioned in this section is only
a money decree and not a mortgage decree. It is essential that the property may not only
belong to the judgment-debtor but he has disposing power over it which can be exercised
for his benefit.

The proviso to Section 60(1) includes property which are exempt from attachment and
sale. Section 61 also includes partial exemption of agricultural produce from attachment.
It includes necessary wearing apparel, cooking vessels, bedding, tools of artisans,
implements of husbandry, houses of agriculturalists, wages, salaries, pensions and
gratuities, compulsory deposits, right to future maintenance, etc. There are two conflicting
opinions regarding whether the judgment-debtor has an option to waive the benefit
conferred by this proviso.
Modes/Procedure of Attachment

The mode of procedure for attachment of immovable property starts with issuing a
prohibitory order to the judgment debtor and to the public generally, this order will stop
the judgment-debtor from transferring the property or charging it.The judgment debtor
shall attend the court on the date prescribed for deciding the terms of proclamation of
sale. Normally for immovable property two copies of prohibitory order is sufficient. But
when the land is one where revenue is paid to the government, three copies of prohibitory
order is prepared. In order to make the attachment valid, the details given in the schedule
attached with the order should be matched to be strictly same with the details given in the
schedules of the property given in warrant.

Furthermore, the warrant and the prohibitory orders along with the copies shall be
submitted to the Nazir. The Nazir will endorse the warrant and return it within specified
time before the Court. Where any person deputed by the Nazir completed the above work
of attachment of property, a separate document stating the manner in which, the day and
hour at which he did such act has to be attached .

Beating of drum or any customary practice will be carried out for the purpose of
proclamation of the order, and the copy of it will be affixed on the conspicuous part of the
property as well as on the court house.After this, the reader has to record a note stating
the fact that all the required formalities dictated by law to be followed have been complied
with. The presiding officer will take charge of ensuring its correctness. The court should
make sure that all the requirements or formalities for a legal attachment have been
complied with inorder to prevent any sort of material irregularity as it might cause serious
trouble and loss to the parties.The civil courts should also apply proper care and caution
in the process of service of warrants of attachment before they take any action with
respect to the property.
‘No property can be declared to be attached', was observed by the Privy Council
in Muthiah Chettiar v Palaniappa Chettiar unless first the order for attachment has been
issued, and secondly inexecution of that order, the other things prescribed by the rules in
the Code have been done’. Therefore, firstly there must be first anorder of attachment
and secondly, in execution of that order formalities prescribed therein have to be complied
with, that is, there should be a prohibitory order restraining the person from in anyway
alienating the property sought to be attached. The formalities required under this section
are mandatory since the intention behind it is to prevent the judgment-debtor from
transferring or alienating the property.

When the property to be attached is movable property which is not an agricultural

produce, then the attaching officer can seize the property and keep it in his custody. But
if the property seized is of perishable nature or the cost of keeping it is likely to exceed its
value the attaching officer can sell it immediately. If the attachment officer fails to sell such
property, he can at the instance of judgment-debtor or decree-holder or anyone interested
in such property leave it in the custody of a respectable person in the village or place
where it has been attached. The custodian will later be liable for the inability to produce
such property before the court, or for any loss or damage caused to it.

When the property to be attached is agricultural produce, a copy of the warrant of

attachment can be affixed on the land on which such crop is grown, or where the produce
has been cut or gathered, or on the threshing treading floor or fodder-stack. One other
copy can be affixed on any conspicuous part of the judgment-debtors house. When
growing crops are being attached the court requires it to be made in the application the
time at which it is likely to be fit to be cut or gathered. The judgment-debtor ought to take
all necessary steps or actions for preserving or maturing it and if the judgment-debtor fails
to do the same, the decree-holder can carry out these needful steps and recover the
expenses from the judgment debtor.
In Krishnamukhlalv Bhawan it was held that even if the attachment of agricultural lands
is irregular or invalid for want of non-publication in the office of the collector as required
by O.21, R.54, C.P.C, it would not prevent the court from proceeding further with the sale
of the properties, because, the law does not say that an immovable property cannot be
sold in execution of a decree without first attaching it.

In case of a money decreethe decree-holder can apply to the court to orally examine the
judgment-debtor or officer or any other person, as to what means he has to satisfy the
decree, and also direct him to make an affidavit stating the particulars of his assets, if the
debts have been unpaid for a period exceeding 30 days. In case of a decree for rent or
mesne profits or any other matter which is to be determined subsequently, the property
of the judgment-debtor can be attached before even ascertaining the amount as done in
the case of ordinary money decrees.

Rule 46 can be divided into 3 parts. Firstly, attachment of a debt not secured by negotiable
instrument. The attachment can be made by a written order prohibiting the creditor from
recovering the debt and debtor from making any payments against it until a court order
on its behalf. This provision mainly deals with garnishee proceedings, where the
judgment-debtors money is in the hands of third persons.. The prohibitory order can be
issued and the debt amount need not be ascertained at this period of time. Rules 46A to
46I deals exclusively with the garnishee proceedings. “Garnishee” means a judgment-
debtors debtor. “Garnisher” would be the decree-holder who initiates the garnishee
proceedings, and “garnishment” is the process through which decree holder seeks to get
the property of the judgment-debtor. “Garnishee proceeding” is a judicial proceeding
where the decree-holder prays to the executing court to direct third party who is a debtor
of the judgment-debtor to pay the amount to the garnisher. “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. Garnishee proceedings cannot be taken in respect
of a debt which cannot be attached under this code. Where the garnishee disputes his
liability, the court must raise an issue, and determine the liability of garnishee.
Secondly, in case of attachment of share in the capital of a corporation the owner of the
share will be prohibited from transferring the share or receiving any dividend according to
an order of the court. Finally in case of attachment of movable property not in the
possession of judgment-debtor, except a property deposited with the court, or in the
custody of the court, the person in the possession of such property will be stopped from
giving it to the judgment-debtor as per the order from the court.

When share or interest in movables is the property to be attached, a notice will be

forwarded to the judgment-debtor prohibiting him from transferring or charging the same.
Furthermore, the attachment of salary of government or railway authority servants can be
done by withholding it subject to section 60 of CPC. A partnership property cannot be
attached in execution of a decree. Such an attachment would be allowed only in a
situation where the decree is passed against the firm or the partners. If the decree-holder
makes an application against the partner, the court can issue an order and appoint a
receiver to ascertain the partners share in the profit or any amount he has to receive and
further make a sale. Where the decree is against the partnership firm, the partnership
property can be attached.

Where the property to be attached is a negotiable interest which is not within the custody
of public officer, or deposited in the court, the process of attachment can be carried out
through actual seizure. Where any property to be attached is within the custody of court
or public officer, a notice will be served to them stating that such property should be held
subject to further orders of the court. In a case where the property attached is a current
coin or currency notes, the court can direct such items to be handed over to the decree-
holder in satisfaction of his claim.
Removal & determination of attachment

The attachment shall be deemed to be withdrawn in the following cases :

(a) The decreed amount, all costs, charges, and expenses from the attachment of
property are paid into the court, or
(b) Satisfaction of the decree is made through the court or certified to the court, or
(c) The decree is set aside or reversed.

In case of immovable property, the withdrawal of attachment can be proclaimed by

the judgment-debtor and the copy of such a proclamation can be affixed in a
conspicuous part of the property and a conspicuous part of the court house at his
expense.

Determination is as to the status of the attachment. In cases where the property has
been attached but later the court passes an order dismissing such an execution, the
court will direct the status of the attachment, i.e, whether the attachment will continue
or cease to exist. On failure from the court to give an express direction, it is considered
implied that the attachment has ceased.

Private alienation of property after attachment

Attachment creates no charge or lien upon the attached property. It only confers a
right on the decree-holder to have the attached property kept incustodia legisfor being
dealt with by the court in accordance with law.It merely prevents and avoids private
alienations; it does not confer any title on the attaching creditors.27Private alienation
of property after attachment is void. If the judgment-debtor transfers or delivers such
property after attachment, any such transfer is considered as void according to section
64 of CPC. The objective of this section is to prevent any sort of fraud on the decree-
holders and secure their interest. Such an attachment should be made in accordance
with the procedure prescribed by the CPC 1908. A mere order for attachment is not
sufficient, in the case of immovable property the attachment to render subsequent
alienation invalid must be made in a manner prescribed by Order 21 Rule 54. But the
section also enshrines that this does not apply in cases where the agreement for
alienation was made before the attachment.

Attachment under precept

Precept is available to provide the decree-holder with an interim attachment. On an

application by the decree-holder the court which issued the decree will issue a precept
to another court. As a general rule, territorial jurisdiction is a condition precedent to a
court executing a decree and neither the court which passes the decree, nor the court
to which it is sent for execution, can execute it in respect of property lying outside its
territorial jurisdiction. The object of section 46 is simply to enable the attachment of
the property of the judgment-debtor situated within the jurisdiction of another court, in
order to prevent the judgment-debtor from alienating or otherwise dealing with it to the
detriment of the judgment-debtor till proper proceedings are taken.

Conclusion
The Civil Procedure Code 1908, includes many procedures and modes for attachment
of different kinds of property. Attachment is the first step and sale of the property will
be carried out after attachment. In some cases sale can be done without attachment
of the property as well,. This does not make the sale irregular. But the right procedure
to be followed is attachment followed by the sale of the property. Section 65 to 73,
and Order 21 Rules 64-94 deals with sale of movable and immovable property. The
court will appoint an officer who will be in-charge of selling the property in execution
of the decree.