ATTACHMENTS IN EXECUTION PROCEEDINGS
ATTACHMENTS IN EXECUTION PROCEEDINGS
To say explicitly, the word “execution” means enforcement or implementation or giving an effect to the order or judgement passed by the court of justice. In the ordinary sense, “execution” means the process for enforcing or giving effect to the judgment of the court. Execution is the enforcement of decrees and orders by the process of court to enable the decree-holder to realise the fruits of the decree.
RELEVANT PROVISIONS FOR ATTACHMENT:
1. Attachment of standing crops, trees and salary—The law as to attachment is contained in
Sections 60-64 and Order XXI, Rules 41-57, Civil Procedure Code
The changes made in Rules 43, 43A, 43B, 43C, 43D, 45, 53 and 54 of Order XXI CPC should be noted. Attention is drawn to the amendment of Section 60 of the Code of Civil Procedure by Act No. 66 of 1956 and 104 of 1976. Now in execution of decrees for maintenance only one-third of the salary would be exempt from attachment irrespective of the amount of the salary.
2. Mode of attachment of immovable property—The mode of attaching immovable property is by issuing a prohibitory order to the judgment debtor and to the public generally.
(It shall require the judgment debtor to attend Court on a specified date to take notice of the date so fixed for settling the terms of the proclamation of sale). (The order shall also take effect, as against of person claiming under a gratutious transfer from the judgment-debtor, from the date of attachment, as against others from the date they had knowledge of the passing of the order of attachment or from the date of proclamation, whichever is earlier (Order XXI, Rule 54), when the property is land paying revenue to the Government, three copies of the prohibitory order shall be prepared. In the case of other immovable property, only two copies are necessary. The details given in the schedule annexed to the order shall be identical with those given in the schedule of the property given in the warrant strict compliance with the provisions of law is necessary to make the attachment valid.
3. Mode of attachment of immovable property—The warrant, together with the requisite copies of the prohibitory, order shall be delivered to the Nazir who will himself, or through his subordinates, fix up the copies and proclaim the order, in accordance with the directions given in the warrant. The Nazir will personally make upon the warrant the endorsement required by law, and return it duly endorsed within the specified time to the Court. Any person deputed by the Nazir, who performs any of the acts constituting the attachment, shall submit a separate return starting the manner in which, and the day and hour at which, he did such act. This return will be attached by the Nazir to the warrant. (Where the property is land situated in a cantonment, copies of the order shall also be forwarded to the Cantonment Board and to the Military Estates officer in whose are that cantonment is situated.
4. Attention to compliance with legal formalities—The attention of all Civil Courts is drawn to the necessity of making it a point to scrutinize the service of warrants of attachment before they take further action with regard to the sale or temporary alienation of the property attached. The attachment of land and houses requires particular care and the Court should thoroughly satisfy itself that all the formalities necessary for a legal attachment, have been complied with. Failure to comply with these legal formalities may constitute material irregularity, within the meaning of Order XXI, Rule 90 Code of Civil Procedure, and may cause very serious trouble and loss to the parties later on. It should be noted that a copy of the attachment order is first to be affixed on the property and then upon the Court house. All Courts will, therefore, require the Reader to record a note on the warrant of attachment or on file, that the specific formalities required by Law in the case, have been actually complied with. The Presiding Officer will carefully scrutinize such note and initial it in token of its correctness.
5. Warrant of attachment of land. Drum beating charges—Where the order is for the attachment of land, the warrant should, in accordance with the provisions of Section 141 of the Punjab Land Revenue Act, XVII of 1887, be addressed to the Collector, and be sent to him for execution, along with the necessary copies of the prohibitory order. The Collector and his office will then be responsible for executing it in accordance with the specified legal formalities, and to affix the necessary prohibitory orders, first on the property and then on the Court house of the Judge issuing the attachment and in his own office. The Collector will return the warrant to the Court concerned when it has been duly executed, with an endorsement under his signature
certifying that all the legal formalities required have actually been complied with, and the Court will thereafter proceed as directed in paragraph 4 above.
Payment of drum-beating charges may be allowed to be made at the discretion of the District Judge either:
(a) in cash at the spot, or
(b) by postal stamps attached to the warrant, or
(c) by Indian Postal Orders.
6. Precept—Upon the application of a decree-holder, the Court which passes a decree may issue
a precept to another Court to attach the judgment-debtor‟s property, when this course is
convenient, provided that the Court to which the precept is issued is competent to execute the
decree (see Section 46, Code of Civil Procedure).
17. Effect of dismissal of execution position—Where the Court for any reason, passes any order dismissing the application for execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease (Order 21, Rule 57).
Determination of Attachment. The attachment automatically ceases where the Court for any reason has dismissed the application for execution of the decree (and has omitted to give anddiscretion to that effect).Removal of attachment after satisfaction of the decree—In the following circumstances, the attachment may be terminated:
(1) When all the costs and charges of the decretal amount are paid into the Court.
(2) Satisfaction of the decree is otherwise made through the Court or certified to the Court.
(3) The decree is set aside.
(4) On furnishing the required security by the J.D.
(5) By compromise between the parties.
(6) By an express order withdrawing or putting an end to the attachment.
(7) By sale of the attached property in execution of the decree.
(8) By abandonment of the attachment by the decree-holder.
8. Notification—The Central Government has issued the following notification under Section
60(1)(L) of the Civil Procedure Code:
The 2nd October, 1940 No. 186/37. In pursuance of Clause (L) of the proviso to sub-section (1) of Section 60 of the Code of Civil Procedure 1908 (Act V of 1908), the Central Government is pleased to declare that the following allowance payable to any public officer in the service of the said Government, or any servant of a Federal Railway or of a Cantonment authority or of the port authority of a major port, shall be exempt from attachment by order of a Court, namely:
(1) All kinds of travelling allowances.
(2) All kinds of conveyance allowances.
(3) All allowances granted for meeting the cost of:
(a) Uniforms; and
(4) All allowances granted as compensation for higher cost of living in localities considered by
Government to be expensive localities including hill stations.
(5) All house rent allowances.
(6) All allowances granted to provide relief against the increased cost of living.
(7) A foreign allowance or, in the case of heads of Diplomatic missions, frais de representation,
assigned to officer serving in posts abroad.
9. Officer to whom notices of attachment of salary etc. may be given under Order XXI,
Rule 48—In pursuance of sub-rule (1) of Rule 48 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908), the Central Government hereby appoints the officers specified in column 1 of the table below as officers to whom notices of orders attaching the salaries and allowances of the officers specified in the corresponding entries in column 2 of the said table shall be sent.
PRINCIPLES RELATING TO EXECUTION OF DECREE AND ORDER
Provision of Cpc relating to execution of decree and order shall be made applicable to both Appeal and Sue.
A decree may be executed by the court which passed the judgement and decree or by some other court which is having competency to implement the judgement passed by such other court.
The court which passed the decree may send it for execution to other court either on application of the applicant (decree-holder) or by the court itself.
A court may order for execution of decree on the application of decree on the application of decree holder (a) by delivery of any property which was in possession of judgement-debtor and decree has been specifically passed concerning such property (b) by attachment and sell of the property of the judgement-debtor (c) by arrest and detention (civil imprisonment) (d) by appointing a receiver (e) in such other manner which depends upon nature of relief granted by the court.
Upon the application of decree-holder, the court may issue “percept” to any other court which is competent in that regard.
All questions arising between the parties to the suit in the decree shall be determined by the court while executing the decree and not by separate suit.
Where a decree is passed against a party as the “legal representative” of a deceased person and decree is for payment of money out of the property of deceased person, it may be executed by attachment and sell of any such property.
A judgement-debtor may be arrested at any time and on any date shall required to be brought before the court which has passed the decree and his detention may be in civil prison of the district where decree shall have to be executed.
Where immovable property has been sold by the court in execution of a decree such sell shall be absolute. The property shall be deemed to be invested in the favour of purchaser, and the purchaser shall be deemed as a party to litigation.
The court to which decree is sent for execution shall require certifying to the court which has passed decree stating the manner in which decree has been implementing concerning the fact of such execution.
ATTACHEMENT OF PROPERTY
A decree may also be executed on the application of the decree-holder by attachment and sale only sale without attachment of property. The code recognizes the right of the decree-holder to attach the property of the judgement debtor in execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the subject of attachment of property. The code enumerates properties which are liable to be attached and sold in execution of a decree. It also specifies properties which are not liable to be attached or sold. It also prescribes the procedure where the same property is attached in execution of decrees by more than one court. The code also declares that a private alienation of property after attachment is void.
Section 60(1) declares what properties are liable to attachment and sale in execution of a decree, and what properties are exempt therefrom. All saleable property( movable or immovable) belonging to the judgement-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit may be attached and sold in execution of a decree against him.
Section 61 deals where the judgement-debtor is agriculturalist. It state that judgement-debtor is agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of attachment of agricultural product depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property through different decree, then it will be looked, that which court is superior. The value of the property will determine whether further attachment can be done or not.
Section 46- “precept” means a command, an order, a writ or a warrant. A percept is an order or direction given by court which passed the decree to a court which would be competent to execute the decree to attach any property belonging to the judgement-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-holder, issue a percept to that court within whose jurisdiction the property of the judgement-debtor is lying to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgement-debtor not located within the jurisdiction of the court which passed the decree so that interest of the decree-holder is safeguarded and protected.
It is interim attachment of the property which lies outside the jurisdiction of court which has passed the order. To protect the interest of the decree holder on his application will issue percept to the court in whose jurisdiction property is situated to attach the property of the judgement-debtor. The interim order for attachment is valid for the period of only 2 months.
It is the proceeding by which the decree-holder seeks to reach money or property of the judgement-debtor in the hands of a third party (debtor of judgement-debtor).
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 C, since B owes the said amount to C, who has obtained the order.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the judgement-debtor because the latter is indebted to the garnisher.
SALE OF THE PROPERTY
A decree may be executed by attachment and sale or sale without attachment of any property. Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and immovable property.
Power of court: Rule 64-65
Rule 64: a court may sell the property, which he has taken into custody under an attachment under order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property. Officer will be the representative of the court and will sell the property for execution of decree.
Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that people can participate in auction and sale. Proclamation can be in writing or by customary mode.
Contents of proclamation:-
1. Time and place of sale
2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.
Time of sale: Rule 68
No sale without the consent in writing of the judgement-debtor can take place before fifteen days in case of immovable property and before 7 days in case of movable property from the date of proclamation in the courthouse. A sell can be conducted immediately if the property is of perishable nature.
Adjournment of sale: rule 69
If the judgement-debtor after the issue of proclamation and before sell has paid the amount, or has partly promised to pay on the given date before completion of public order, if there is any justified reason, in those circumstances, court has discretionary power to postponed the sell. If it has been postponed for period of 30 days, fresh proclamation has to be issued and again the process of rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgement-debtor dies before the date of sell or after the issue of proclamation, or on the date of auction.
Restriction to bid: Rule 72-73
A decree-holder cannot, without the express permission of the court, purchase the property sold in execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the property sold in execution of decree on the mortgage.
Any officer or other person having any duty to perform in connection with the execution sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in the property sold in execution.
Rule 78-78 talks about sale of movable property.
Rules 74 and 75 relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable instruments and shares. Sale of movable property should be held by public auction. A sale of movable property will not be said aside on the ground of irregularity in publishing or conducting the sale (rule 78).
Rule 82-94 talks about sale of immovable property.
Rule 83 enables the executing court to postpone sale to enable the judgement-debtor to raise decretal dues by private alienation.
Rule 84-85 provide for payment of purchase money by auction-purchaser. Rule 86 talks about cases of default by auction-purchaser in making requisite payment and resale of property. Rule 89-91 and 93 deals with setting aside sale and effect thereof. Rules 92-94 provide confirmation of sale and issuance of sale- certificate. Section 65 declares the effect of sale.
From the above discussion it clearly appears that execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order. Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and order, take care of different type of situation and provide effective remedies not only to the decree-holder and judgement-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest and detention of the judgement-debtor, attachment of the property, by sale, by appointment of receiver, partition, cross-decrees and cross-claims, payment of money etc. On exceptional situation, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file suit in civil court..
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