Modes of Attachment of property

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Attachment of property

In case of a decree from a Court, the Court may require any person (known as the defendant) to pay any sum to the decree holder (or 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.

Sec.51 of CPC provides the following modes of execution of decrees subject to such conditions and limitations as may be prescribed.

(a) By delivery of any property specifically decreed;

(b) By attachment and sale or by the sale without attachment of any property ;

(c) By arrest and detention in prison for such period not exceeding the period special ed in Sec.58, where arrest and detention is permissible under that section;

(d) In such other manner as the nature of the relief granted may require.

Decree holder is Dominus Litus

It is for the Decree Holder to choose mode of execution among those available to him. Neither the Judgment Debtor nor the Court can insist upon the Decree Holder to choose a particular mode of execution.[1]

In an EP for arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the Judgment Debtor has sufficient means to satisfy the decree, the Court cannot refuse to order arrest, on the ground that there is alternative remedy of attachment available to the Decree Holder for realization of decretal amount[2]

Precept

Before going to the topic Attachments, let we know about the Precept. Sec.46 of CPC deals with Precept. The Court who has passed the decree will issue a Precept to any other Court who is competent to execute such decree, to attach any property belonging to the Judgment Debtor and specify the same in the Precept. The object of Section 46 is to enable the decree- holder to obtain an interim attachment of any property of the Judgment- debtor situated within the jurisdiction of another Court when it is apprehended that would otherwise be deprived of the fruits of the decree.

The Form No.2 of Appendix E of CPC prescribes the Form of Precept.

Attachment of property, movable and immovable

Sections 60 to 64, Order XXI Rules 41 to 54 of CPC and Rules 242 to 259 of Civil Rules of Practice deal with Attachment of Property.

Order XXI Rule 41 of CPC is sufficiently amended to facilitate the matters to call for an affidavit of the assets of the Judgment-debtor. This rule is applicable to a case of unascertained mesne profits and also to a case of unascertained damages. The object of this rule is to obtain discovery for the purpose of execution in obtaining the particulars of the property of Judgment- debtor with a view to avoid delay.

Order XXI Rule 41 is applicable to execution by arrest and detention also. In Voona Surya Rao v. Salina Sarathi and other[3], the Hon’ble High Court held that the application under Rule 41 is allowed in EP for arrest also.

Non-examination of Judgment-debtor as to his assets cannot be used as a ground of prejudice Under Order XXI Rule 90 of CPC[4].

Attachment in case of decree for Rent or Mesne Profits or other matter, amount of which to be subsequently be determined:-

Order XXI Rule 42 of CPC provides for the attachment of property in case of decree for Rent or Mesne Profits. A decree directing an inquiry as to rent or mesne profits or any other matter in a decree for money are within the meaning of this rule. Attachment of property of Judgment-debtor cannot be made under this rule after the amount is ascertained in an enquiry[5].

In N. Janakamma v. B.Venkata Lakshmamma[6], it was held that mere pendency of an application for a decree for mesne profits cannot constitute a basis for filling an application under Rule 42 of Order XXI. It is mandatory that a decree must be existing directing payment of mesne profits, before the said provision is pressed into service.

Attachment after preliminary decree and before final decree

Where the attachment is sought after passing of the preliminary decree and before final decree, such attachment is covered by Order XXI Rule 42 apart from Order XXXVIII Rule 5 of CPC[7].

Attachment of movable property other than agricultural produce in possession of J.Dr.

Rule 43 of Order XXI deals with procedure of attachment of movable property other than agricultural produce in possession of Judgement Debtor. Rule 44 deals with attachment of agricultural produce. Attachment under Rule 43 by actual seizure of movables of Judgment-debtor. If they are with some other person the procedure prescribed under Rule 46 should be followed.

Basic distinction between attachment of movable property and immovable property

The basic distinction between attachment of movable property and immovable property is that in the former case application of physical possession is necessary and in the latter it is not so. The attachment of movable property is legally effected only by actual seizure and possession[8].

Rules from 252 to 257 of Civil Rules of Practice deal with the Procedure to be followed for attachment of movable property.

As per Rule 252, when movable property is attached in execution of any civil process, the attaching officer shall give a copy of the list of attached property with description sufficient for identification to the person from whose possession property is attached. If he is not present, then, to any adult male member of the family of such person, who is present.

Sub-rule (1) of Rule 253 says that if the property attached consists of Government or other securities, jewels or other valuable articles of small bulk, the Nazir shall keep the same together with a descriptive list in a box (not the ordinary cash chest of the Court) under lock and seal and send the box for safe custody to the nearest Government Treasury under the orders of the Judge.

Sub-Rule (2) says that in other cases, attached property brought to the Court shall be retained by the Nazir in the Court House if it can conveniently be stored or kept there.

Time of attachment

Referring to Sec.62 of CPC which speaks that an attachment of movable property can be made after sunrise and before sunset and the exact time of sunrise or sunset will vary with the moth of every year. It is not the law that the attachment should be made at or before 6:00 PM or 6:30 PM[9]

Decree-holder’s custody

Whether the attaching Amin keeps the movable property attached in his custody or entrusts it to a Sapurdar, the possession of the Amin or Sapurdar, is in law the possession of the Court. In case the property is kept in the custody of the decree-holder, the decree-holder’s custody is not in his capacity as decree-holder but only as the bailee of the Sapurdar[10].

Conditions to be satisfied for Rule 43

For application of Rule 43, two conditions shall be satisfied. First, there must be an order for attachment and secondly, actual seizure of property in execution of order. Because of actual seizure, the attached property comes to the possession of the Court. Either it is taken possession of by custodian or other person; it shall be regarded with the Court only.

Rule 43-A contemplates three contingencies. One, as per sub-rule (1), in case the attaching officer does not act under the proviso to Rule 43, (where the property seized from the possession of J.Dr was not subject to speedy decay) the attaching officer was to sell it at once. Two, if he does not sell it away, at the instance of J.Dr or the D.Hr or at the instance of any other person interested in such property, the attaching officer may leave the property in the village in the custody of a respected person. The third one is, Order 38 Rules 9 & 11-A shall be read conjointly with Order 21 Rule 43-A. IN nut-shell, attachment before judgment can be withdrawn when security is furnished or when suit is dismissed or when the suit is dismissed in default. But the attachment does not revive merely because the suit has been restored (Rule 11-A(2) of Order 38)

Attachment of Agricultural Produce (Order XXI Rule 44)

This rule deals with the procedure of attachment of agricultural produce. This rule applies only when the property is in possession of the Judgment-debtor. Where the property to be attached is agricultural produce, the attachment shall be made by a affixing a copy of the warrant of attachment –

(a) where such produce is a growing crop, on the land on which such crop has grown, or ;

(b) where such produce has been cut or gathered, on the thrashing  floor or place for treading out grain or the like or fodder-stock on or on which it is deposited.

And another copy on the outer door or on some other conspicuous part of the house in which the Judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for grain or in which he is known to have last resided or carried on business or personally worked for grain; and the produce shall thereupon be deemed to have passed into the possession of the Court.

The expression ‘agricultural produce’ is confined to growing crop standing on the land or fodder-stock. The grain separated from chaff ceases to remain agricultural produce[11].

Order XXI Rule 45 deals with the provisions as to Agricultural Produce under attachment.

Attachment of shares in movables

Order XXI Rule 47 deals with the attachment of shares in movables. Under this rule the attachment of share of judgment-debtor along with another is possible only by issuing a notice of prohibitory order to the judgment-debtor and attachment by seizure is against the provisions of this rule. If the Court finds that the claimant has share in the property attached, the procedure is to release the entire property from attachment and to proceed by way of attachment under this rule.

Attachment of Immovable property

Sec.60 & 64 and Order XXI Rule 54 deals with Attachment of Immovable property. The prescribed form used for issuance of Prohibitory Order Under Order XXI Rule 54 is Form No.24 of Appendix E of CPC.

Order XXI Rule 54 prescribes a procedure regarding attachment of immovable property. Sub-rule (1) says that in case of immovable properties 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.

Sub-rule (2) says that such an order of attachment shall be proclaimed at some place on or adjacent to the property attached by beat of tom tom or other customary modes and a copy of the Order shall be affixed on a conspicuous part of the property and then in a Court house. It further says that where the property is land paying revenue to the Government , then they said Publication should be made by affixing a copy thereof in the office of the Collector of the District in which the land is situate.

Attachment of the property at the instance of Judgment-debtor is unknown to Law[12]. The object of issuing a prohibitory order under this rule is to inform the Judgment- debtor that the property had been attached and he should not transfer or encumber the property thereafter[13].

No separate attachment is required

No separate attachment is necessary in execution proceedings when property was attached before judgment as contemplated Under Rule 5 of Order XXXVIII CPC[14].

Private Transfer – Sec.64

Sec.64 contemplates only one attachment and no other. When once attachment is made and if there is any transfer or delivery of attached property contrary to such attachment, such a transfer would be void as against all claims enforceable under that attachment. The object of this section is to prevent fraud on decree-holders and also to preserve intact the rights of the attaching creditor against attached property by prohibiting private alienation pending litigation.

Necessity of attachment

Attachment of the property is neither necessary nor essential step for sale of property of judgment-debtor[15]. Failure to attach the property before the Court sale is only an irregularity which becomes material only if the property had in fact been privately transferred before the Court sale[16].

Failure of J.Dr to attend in pursuance of notice

Where a Judgment-debtor having received notice under Order XXI Rule 54(1-A) of CPC to attend the Court fails to attend and give the valuation of the property to be included in the proclamation of sale and thereby his valuation is not included in the sale proclamation, held, he cannot complain that the sale is vitiated.[17]

Order XXI Rule 54(1-A)

Rule 54 provides for the attachment of immovable property and the procedure for proclamation of such attachment. In order to minimise the delay in execution of decree this sub-rule (1-A) was inserted to provide that the order shall also specify a date on which the Judgment-debtor is to attend the Court to take notice of the date  affixed for settling the terms of proclamation. Mere issuance of notice under Order XXI Rule 54 cannot be construed as notice under sub-rule (1-A) of Rule 54 of Order XXI CPC[18].

Attachment of negotiable instruments

Order XXI Rule 51 says that where the property is a negotiable instrument not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court. The prescribed form used for issuance of Order of Attachment under Order XXI Rule 51 is Form No.20 of Appendix-E of CPC.

Attachment of property of partnership Firm

Order XXI Rule 49 of CPC deals with Attachment of partnership property. The general rule under sub-rule (1) of Rule 49 is that property belonging to a partnership shall be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. However, the general rule has exemptions otherwise.

Sub-rule (2) provides that “on the application of the holder of a decree against a partner, the Court may make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a Receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree holder by such partner, or as the circumstances of the case may require.

Execution of Decree against firm (Order XXI Rule 50)

Decree against the firm can be executed against

(i) partnership property;

(ii) any person who has appeared individually in his own name and has been served with notice Under Order XXX Rules 6 or 7 ;

(iii) a person who has admitted himself to be a partner ; and

(iv) one who has been served with notice as partner but has failed to appear.

Distinction between Order XX and Order XXI Rule 50

Rule 50 should be read with the provisions of Order XXX; the latter deals with the procedure in suits instituted by or against firms, while this rule deals with the mode of execution of decrees which have been obtained against  firm in the  firm name[19].

Liability of partners is joint and several

In Ashuthosh v. State of Rajasthan[20], it was held that it is open to the Creditor of the firm to recover the debt of the firm from anyone or more of the partners. The Hon’ble Supreme Court was of the consistent opinion that, execution under Rule 49 of Order 21 can only be granted where a decree has been passed against a firm.

Garnishee Orders

Order XXI Rule 46 to 46-I, Rule 48, 48A and 52 of CPC deal with Garnishee Orders.

Order XXI Rule 46 – Attachment of debt, shares and other property not in possession of Judgment Debtor

This rule deals with Garnishee Proceedings. These apply when monies of the Judgment-debtor are in the hands of third parties. Order arresting debt in the hands of debtor is known as Garnishee Order. The prescribed form used for issuance of prohibitory order under Rule 46 is Form No.18 of Appendix-E of CPC.

Attachment of money

Decree-holder can proceed against garnsihee only if the Judgment debtor had the present right to recover money from garnishee. Until and unless the bills are drawn and paid, the same cannot be treated as the property of Judgment debtor and hence not attachable[21].

Attachment of Fixed Deposit Receipt in Bank

Banker’s lien would not by itself be a bar for attachment of Fixed Deposit in execution proceedings against the customer. The banker in such a case is a garnishee, when attachment notice is served has to go before the Court and obtain suitable directions for safeguarding its interest.[22]

In Radhe Shyam Gupta v. Punjab National Bank Ltd[23] and another case, the Hon’ble Supreme Court held that Pensionary benefit and gratuity received in cash and converted into Fixed Deposit Receipts, such FDRs cannot be attached.

Procedure under Rule 46 to be followed for attachment before Judmgent also

In K.Chandrasekharam v. Vijay Bhargavi Chit Fund Pvt. Ltd[24], it was held that the procedure and modalities of attachment for recovery of decretal amount applies mutatis mutandis to attachment before judgment as well. It is stated that the rules contained in Order 38 do not lay down any particular method of attachment before Judgment. Evidently the same procedure under Rule 46 has to be followed.

Before deal with Garnishee Proceedings, let us know Attachment of Salary or allowance of a Government as well as Private Employees.

Attachment of salary or allowance of a Government Employee

Order XXI Rule 48 deals with attachment of Salary or allowances of servants of Government or Railway Company or local authority or Government or Corporation established by the Government and it is an exception to Rule 46. This rule is subject to the provisions of Sec.60 of CPC. The prescribed form used for issuance of order Under Order XXI Rule 48 is Form No.19 of Appendix-E of CPC.

Section 39 CPC has no application to the attachments under Rule 48 of Order 21 CPC[25].

Attachment of salary or allowances of private employees

Order XXI Rule 48-A of CPC deals with the attachment of Salary or allowances of a Private Employee. To exercise the powers under Order XXI Rule 48A, it is mandatory that the disbursing officer of the Judgment Debtor shall have to be within the local limits of its jurisdiction.[26]

Not necessary that JDR and Garnishee are within the jurisdiction of the Court

In Adithya Electronics, Hyderabad v. AS Impex Ltd.[27], the Hon’ble High Court took the view that since the Judgment Debtor and Garnishee are outside the jurisdiction of the executing Court, the attachment cannot be granted.

In Shri Ram Chits Pvt. Ltd. v. V. Govindaswamy[28], the Hon’ble High Court of AP considered the following questions

(a) whether simultaneous execution is maintainable and the ground for the dismissal recorded by the Court below are not sustainable ; and

(b) whether the Court has no jurisdiction.

and it was held that so far as the attachment of salary is concerned, Order 21 Rule 48 empowers the Court to attach the salary and allowances of the Government servant, whether the J.Dr or the disbursing officers is or is not within the jurisdiction of executing Court and the only limitation is that it should be done subject to the provisions of Sec.60 of CPC.

Choice of Decree Holder in a joint decree

It is the opinion of the Court that the Decree holder has a right to proceed against any of the Judgment debtors including guarantor in the first instance in view of Sec.128 of Contract Act and that liability of surety is co- extensive with that of principal debtor unless it is otherwise provided by contract. In case the decree is a joint decree it does not place any fetter on the right of the Decree holder to go on against any of the judgment debtors of his choice for recovery of amount due[29].

Attachment of Salary is only once for a decree

In Shaik Noorjahan v. M. Rajeswari 2010(4) ALT 787, it was held that when any part of attachment portion of salary of Judgment Debtor was under attachment in execution of decree for a period of (24) months it is exempted from further attachment in execution of same decree even if there is a gap of (12) months after completion of (24) months of attachment, in view of Proviso to Clause (i) of Sec.60(1) of CPC.

Garnishee Proceedings

Order XXI Rule 46-A CPC deals with notice to Garnishee. There must be a creditor and debtor relation between judgment-debtor and garnishee to enable the Court to pass an order Under Order XXI Rule 46-A of CPC.

Order XXI Rule 46-B Says that if the garnishee did not pay the amount in pursuance of notice and does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice; and on such order execution may issue as though such order were a decree against him.

Trial of Disputed Questions

Order XXI Rule 46-C says that it is open to the garnishee to raise objections immediately after the order to attachment is made or at least while making the deposit. Failure to raise objection at appropriate time, bars the garnishee to raise the objections at the time of issuance of cheque to the decree-holder is not permissible[30].

Where the movable property was not in possession of Judgment-debtor but in custody of Court, it could not be attached by virtue of exclusionary clause of Order XXI Rule 46-C of CPC[31].

Order XXI Rule 46-D says that if the debt belongs to some third person, or that any third person has a lien or charge on or other interest in such debt, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same.

Order XXI Rule 46-E says that after hearing such third person or persons referred to in 46-D, who may subsequently be ordered to appear, or where such third or other person or persons do not appear when so ordered, the Court may make such order or orders with respect to the lien, charge or interest as the case may be, of such third or other person or persons as the Court deems fit and proper.

Payment by Garnishee is valid discharge

According to Order XXI Rule 46-F, payment made by the garnishee on notice under Rule 46A or under any such order is valid discharge as against the J.Dr and any other person ordered to appear for the amount paid or levied, although the decree in execution of which the application under Rule 46A was made, or the order passed in the proceedings on such application may be set aside or reversed.

Contempt shall not be initiated against Garnishee

If a Garnishee who is directed to pay any sum of money does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience or breach under Order 39 Rule 2A[32].

Exemption from Attachment

The proviso to Section 60 CPC gives the items which are exempted from Attachment. The following are the exemptions.

In case of employees

– Arrears of Salary

In M.Prabhudas v. Usirikayala Venkata Ramana[33], it was held that it hardly makes any difference in the context of extending the benefit under Section 60(1)(i) whether it is salary from month to month or it is the amount accumulated as arrears of salary, the prohibition contained in the proviso to that section would operate without any modification.

– Gratuity, etc., exempt till they reach the J.Dr

In Gudapati Hanumaiah v. Y. Lakshminarasamma[34], the Hon’ble High Court of AP was pleased to held that the exemption from attachment of death bene ts payable to deceased employee in the form of gratuity, provident fund, insurance and other compulsory deposits are exempted from attachment until they are actually received by the legal representatives of the deceased employee.

In Bandi China Ramalinga Reddy v. Nalluri Srinivasulu[35], it was held that so long as pension, gratuity etc., not received by beneficiary only they are exempted from attachment in view of Sec.60(1)(g) of CPC. When once they reach hands of employee, the exemption would cease to operate.

HRA & DA – not exempted

The Division Bench of our Hon’ble High Court held in K.Venkateshwarlu v. D. Ranga Reddy[36], that House Rent Allowance and Dearness Allowance which are not exempted by the State of Andhra Pradesh, would not form part of “salary” and therefore liable for attachment subject to the restrictions contained in clause (i) of Section 60 CPC.

Insurance amount – exempted

In Pulugu Karunakar Reddy v. Shreya Financiers and Hire Purchase[37], it was held that amounts payable under insurance policy on the life of the decreased are exempt from attachment under Sec.60(1)(kb) of CPC for any amounts due by insured.

In Bomminayana Nirmala vs Rachapathu Krishna Murthy[38], it was held that, if a suit is led against the successors of policy holder, the policy amount is exempted. The fact that attachment before judgment became final does not change the situation or the order of the Court attaching LIC amount operates as Res Judicata.

Encashment of surrender leave – not exempted

In Balasa Rama Rao v. General Manager, District Co- operative Central Bank Ltd., Srikakulam[39], it was held that – so far as encashment of leave is concerned, since no specific exemption is provided under the proviso to Sec.60 CPC, the same can be a subject matter of attachment.

Exemption can be claimed at the time of sale also

In Padarthi Sambasiva Rao v. Guduru Koteshwara Rao[40], it was held that the exemption under Sec.60 of CPC can be claimed at the time of sale, it is obvious, that the Judgment Debtor who did not raise the claim for exemption of his house from attachment, can always has the liberty of taking that plea at the time of sale.

Proviso to Sec.60 is applicable to Order 38 Rule 5 also

In Bachala Narapa Reddy v. Kasunnuru Bala Obaiah[41], it was held that the protection from attachment given under Sec.60 is available equally to the attachment before judgment also.

Attachment of property in custody of Court or Public Officer

Order XXI Rule 52 deals with the attachment by one Court or property in the custody of another Court or of a public officer. Form No.21 of Appendix-E is prescribed for issuance of prohibitory order under this rule.

Procedure of Attachment (Issuance of notice)

This rule requires that where the property is in custody of any Court or Public officer, attachment shall be made a notice to such Court or Officer. The prescribed form is Form No.21 of Appedix-E of CPC. But absence of such notice would not render the sale void ab initio.[42]

Principles of Rate able Distribution applicable to Rule 52

The principle of rate able distribution is applicable to the case where two or more decree holders obtains decree and applies for execution. The power to repeatably distribute monies vest in the attaching Court only.[43]

Determination & removable of Attachment [Order XXI Rule 55] :

Order XXI Rule 55 deals with the automatic termination of attachment on satisfaction of decree. This rule is not applicable to cases of attachment made before judgment when execution petition was dismissed for default but is applicable to the cases of satisfaction of decree.

The words “amount decreed” in Clause (a) of Rule 55 of Order XXI means in the case of installment decree, the installment which has become due and in respect of which the attachment has been made. When money is attached and brought into the Court in execution of decree for payment of money, it cannot be said that the Judgment-debtor has paid the amount into Court under Clause (a) and attachment would continue until that amount is disposed o  by the Court by paying it to the decree-holder or otherwise.

Revival of Attachment

There can be no revival of attachment when the suit is subsequently decreed by the same Court or a superior Court. Attachment comes to an end on the sale of property and the same is revived when the sale is set aside.

Frequently Asked Questions

1. Discuss attachment of property movable and immovable. Draw a contrast between both. 

Sections 60 to 64, Order XXI Rules 41 to 54 of CPC and Rules 242 to 259 of Civil Rules of Practice deal with Attachment of Property.

Order XXI Rule 41 of CPC is sufficiently amended to facilitate the matters to call for an affidavit of the assets of the Judgment-debtor. This rule is applicable to a case of unascertained mesne profits and also to a case of unascertained damages. The object of this rule is to obtain discovery for the purpose of execution in obtaining the particulars of the property of Judgment- debtor with a view to avoid delay.

Order XXI Rule 41 is applicable to execution by arrest and detention also. In Voona Surya Rao v. Salina Sarathi and other, the Hon’ble High Court held that the application under Rule 41 is allowed in EP for arrest also.

Non-examination of Judgment-debtor as to his assets cannot be used as a ground of prejudice Under Order XXI Rule 90 of CPC.

Distinction- The basic distinction between attachment of movable property and immovable property is that in the former case application of physical possession is necessary and in the latter it is not so. The attachment of movable property is legally effected only by actual seizure and possession.

Rules from 252 to 257 of Civil Rules of Practice deal with the Procedure to be followed for attachment of movable property.

As per Rule 252, when movable property is attached in execution of any civil process, the attaching officer shall give a copy of the list of attached property with description sufficient for identification to the person from whose possession property is attached. If he is not present, then, to any adult male member of the family of such person, who is present.

Sub-rule (1) of Rule 253 says that if the property attached consists of Government or other securities, jewels or other valuable articles of small bulk, the Nazir shall keep the same together with a descriptive list in a box (not the ordinary cash chest of the Court) under lock and seal and send the box for safe custody to the nearest Government Treasury under the orders of the Judge.

Sub-Rule (2) says that in other cases, attached property brought to the Court shall be retained by the Nazir in the Court House if it can conveniently be stored or kept there.

2. Discuss Attachment in case of decree for Rent or Mesne Profits.

Order XXI Rule 42 of CPC provides for the attachment of property in case of decree for Rent or Mesne Profits. A decree directing an inquiry as to rent or mesne profits or any other matter in a decree for money are within the meaning of this rule. Attachment of property of Judgment-debtor cannot be made under this rule after the amount is ascertained in an enquiry[44].

In N. Janakamma v. B.Venkata Lakshmamma[45], it was held that mere pendency of an application for a decree for mesne profits cannot constitute a basis for filling an application under Rule 42 of Order XXI. It is mandatory that a decree must be existing directing payment of mesne profits, before the said provision is pressed into service.

3. Discuss provisions relating to removal of Attachment?

Order XXI Rule 55 deals with the automatic termination of attachment on satisfaction of decree. This rule is not applicable to cases of attachment made before judgment when execution petition was dismissed for default but is applicable to the cases of satisfaction of decree.

The words “amount decreed” in Clause (a) of Rule 55 of Order XXI means in the case of installment decree, the installment which has become due and in respect of which the attachment has been made. When money is attached and brought into the Court in execution of decree for payment of money, it cannot be said that the Judgment-debtor has paid the amount into Court under Clause (a) and attachment would continue until that amount is disposed o  by the Court by paying it to the decree-holder or otherwise.

4. What is the Procedure of Attachment?

The Procedural rule of Attachment requires that where the property is in custody of any Court or Public officer, attachment shall be made a notice to such Court or Officer. The prescribed form is Form No.21 of Appedix-E of CPC. But absence of such notice would not render the sale void ab initio.

5. Discuss under what circumstances Attachment could be exempted?

Ans.The proviso to Section 60 CPC gives the items which are exempted from Attachment. The following are the exemptions.

In case of employees

Arrears of Salary

In M. Prabhudas v. Usirikayala Venkata Ramana[46], it was held that it hardly makes any difference in the context of extending the benefit under Section 60(1)(i) whether it is salary from month to month or it is the amount accumulated as arrears of salary, the prohibition contained in the proviso to that section would operate without any modification.

Insurance amount – exempted

In Pulugu Karunakar Reddy v. Shreya Financiers and Hire Purchase[47], it was held that amounts payable under insurance policy on the life of the decreased are exempt from attachment under Sec.60(1)(kb) of CPC for any amounts due by insured.

Encashment of surrender leave – not exempted

In Balasa Rama Rao v. General Manager, District Co- operative Central Bank Ltd., Srikakulam[48], it was held that – so far as encashment of leave is concerned, since no specific exemption is provided under the proviso to Sec.60 CPC, the same can be a subject matter of attachment.

Exemption can be claimed at the time of sale also

In Padarthi Sambasiva Rao v. Guduru Koteshwara Rao[49], it was held that the exemption under Sec.60 of CPC can be claimed at the time of sale, it is obvious, that the Judgment Debtor who did not raise the claim for exemption of his house from attachment, can always has the liberty of taking that plea at the time of sale.

6. Discuss Attachment with special reference to Agricultural Produce.

Order XXI Rule 45 deals with the provisions as to Agricultural Produce under attachment.

The expression ‘agricultural produce’ is confined to growing crop standing on the land or fodder-stock. The grain separated from chaff ceases to remain agricultural produce.

This rule deals with the procedure of attachment of agricultural produce. This rule applies only when the property is in possession of the Judgment-debtor. Where the property to be attached is agricultural produce, the attachment shall be made by a affixing a copy of the warrant of attachment –

(a) where such produce is a growing crop, on the land on which such crop has grown, or ;

(b) where such produce has been cut or gathered, on the thrashing  floor or place for treading out grain or the like or fodder-stock on or on which it is deposited.

And another copy on the outer door or on some other conspicuous part of the house in which the Judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for grain or in which he is known to have last resided or carried on business or personally worked for grain; and the produce shall thereupon be deemed to have passed into the possession of the Court.

7. Can the Revival of Attachment be made?

There can be no revival of attachment when the suit is subsequently decreed by the same Court or a superior Court. Attachment comes to an end on the sale of property and the same is revived when the sale is set aside.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

References

[1] V. Dharmavenamma v. C. Subrahmanyam Mandadi 2009(5) ALD 487

[2] Gudivada Munemma v. Jawardhal 2006(6) ALT 587

[3] 1997(6) ALD 122

[4] Karnataka Bank v. K.Shamanna and others AIR 1972 Kant 321

[5] Ghanshamdas v. Shivarama Subramaniam AIR 1986 Mad 17

[6] 2007(3) ALD 169

[7] Oeseph Sakaria v. Cherian Joseph AIR 1971 Ker 159 DB

[8] B.Venkatadri Reddy v. P.A. Vanajakshi 2005(1) ALT 640

[9] Tika Ram v. State AIR1960All 453

[10] Sapurdar Teeka & Ors v. State of UP AIR 1961 SC 803

[11] Bhabhoot Singh v. Ghanshyam Durga Prasad AIR 1962 Raj 82

[12] Vakaruddin Alikhan v. Syed Abdul Mazid 2005 (1) ALT 775

[13] Deshbandh Gupta v. N.L. Anand (1994) 1 SCC 131

[14] N.Mohana Kumar v. Bayani Lakshmi Narasimhaiah 2000 (1) APLJ 56

[15] Pedda Edla Ram Kishtaiah v. Manne Pochaiah AIR 1967 AP 148

[16] Kanhaiya Lal v.  Dr. D.R. Banaji AIR 1958 SC 725

[17] V.V.Narayan Chetty  v. Nenla Dhanamma AIR 1984 AP 159 (DB)

[18] P. Narayana Reddy v. M. Reddeppa Reddy 2004 (5) ALT 226

[19] Gambhir Mal Pandiya v. JK Jute Mills Company Limited, Kanpur AIR 1963 SC 343

[20] (2005) 7 SCC 308

[21] Hyderabad Co-operative Commercial Corporation Ltd v. Syed Mohiuddin Khardri AIR 1970 AP 162

[22] Syndicate Bank  v. Vijay Kumar AIR 1992 SC 1066.

[23] AIR 2009 SC 930

[24]  2000(1) ALD 761

[25] Salem Advocates Bar Association v. Union of India 2005(5) ALD 1 SC

[26] Nanduri Vijaya Bhaskar v. Sathyamsetty Veera Venkata Apparao 1987(2) APLJ 225

[27] New Delhi 2004(2) ALD 779

[28] 2011(3) ALT 528

[29] MG Brothers Finance Ltd v. J.Badrinath 2007(1) ALD 451

[30] Kuchimanchi Nagamani v. Mantri Prasada Agnihotrudu 2001(1) ALT 385

[31] Surender Singh Balaji v. Kitty Steels Ltd. 2002 (6) ALT 224

[32] Food Corporation of India v. Sukh Deo Prasad(2009) 5 SCC 665

[33] 2011(4) ALT 399

[34] 2009(3) ALD 330

[35] 2006(2) ALD 734

[36] 2002 Supp. ALD 686 DB

[37] 2007(2) ALT 212

[38] 2010(4) ALT 260

[39] 1995(3) ALD 1045

[40] 1979(1) An.WR.420

[41] 2000 (4) ALT 433

[42] Kanhaiyalal v. D.R. Banaji AIR 1958 SC 725

[43] S.Pulleswara Rao v. M.B. Kutumba Rao AIR 1977 472

[44] Ghanshamdas v. Shivarama Subramaniam AIR 1986 Mad 17

[45] 2007(3) ALD 169

[46] 2011(4) ALT 399

[47] 2007(2) ALT 212

[48] 1995(3) ALD 1045

[49] 1979(1) An.WR.420

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Shuvneek Hayer
Shuvneek Hayer is currently pursuing her B.A. LLB(Hons). from University Institute of Légal Studies, Panjab University, Chandigarh. Law had never been her area of interest initially, but gradually as she completed a year in law school, she was drawn to the contemporary issues involving human rights and literature. Inside her law degree, she participated in various national and international level moot court competitions, Debates, MUNs and served as a member of Moot Court Society, UILS. Outside her degree, She got herself involved in a Chennai-based NGO and taught the underprivileged kids on weekends. Later she put forth the idea of bringing up an NGO run by law students where they could address the issues individually and closely interact with the community by fighting for their rights. She has presented various research papers including a few on women rights, child rights, surrogacy rights, communal rights, etc. In her free time, she loves reading contemporary literature, current issues and spending time with family.