CODE OF CIVIL PROCEDURE

MODES OF ATTACHMENT OF PROPERTY

UNDER ORDER 21

SUBMITTED TO : DR. KARAN

SUBMITTED BY: AMRAPALLI SHARMA

CLASS/SECTION: [Link](HONOURS)/A

SEMESTER : VIII

ROLL NO. : 9/15

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 ACKNOWLEDGMENT

Apart from the efforts of myself, the success of any project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my gratitude to
the people who have been instrumental in the successful completion of this project. I would like
to show my greatest appreciation to Dr. Karan. I can’t say thank you enough for her tremendous
support and help. I would like to thank my friends and classmates who gave their valuable
suggestions whenever needed. The guidance and support received from all the people involved
who contributed and who are contributing to this project, was vital for the success of the project.
I am grateful for their constant support and help.

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 INDEX

SERIAL NO. TOPIC PAGE NO.

1. INTRODUCTION 4.

2. ATTACHMENT 6.

3. MODES OF ATTACHMENT 8.

4. PRECEPT 14.

5. GARNISHEE ORDER 15.

6. DETERMINATION OF ATTACHMENT 17.

7. PRIVATE ALIENATION 18.

8. CONCLUSION 19.

9. BIBLIOGRAPHY 20.

INTRODUCTION

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Every civil suit consists of three stages, which are:-

1. Institution of litigation
2. Adjudication of litigation
3. Implementation of litigation

Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree means
operation or conclusiveness of judgment. Implementation of a decree will be done only when
parties have filed an application in that regard. A decree or order will be executed by the court as
facilitative and not an obligation. If a party is not approaching the court, then the court has no
obligation to implement it suo motu.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the
mandate of the decree or order as the case may be. It enables the decree-holder to recover the
fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder
gets money or other thing awarded to him by judgment, decree or order.1

The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgment passed by the court
of justice.2 Simply “execution” means the process for enforcing or giving effect to the judgment
of the court.3

The judgment debtor is a person against whom a decree has been passed or an order capable of
execution has been made.

The decree holder means a person in whose favour a decree has been passed or an an order
capable of execution has been made.

Mode of executing decree under Section 51of CPC:

1
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7 th [Link] Book Company. Pg. 616

2
Halsbury’s Laws of England (4thedn.)Vol. 17 at p.232; Concise Oxford English Dictionary  (2002) at p.497.
3
Overseas Aviation Engineering, In re, (1962) 3 All ER 12: 1963 Ch D 24 (per Lord Denning)

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(a). By delivery of any property specifically decreed. Property may be movable or immovable

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

(c). Court can execute decree by mode of arrest and detention.

(d). It can be executed by appointing a receiver.

(e). Clause (e) is the residuary clause and comes into play only when the decree cannot be
executed in any of the modes prescribed under clause (a) to (d).

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 ATTACHMENT

Section 51(b) of the Code empowers the Court to execute a decree on the application of the
decree-holder by attachment and sale or by sale without attachment of property. The code
recognizes the right of the decree-holder to attach the property of the judgment debtor in
execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and
Rules 41 to 57 of Order 21 deal with the subject of attachment of property. 

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt there from. 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 proviso to §60(1) includes property which are exempt from attachment and sale. 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. One view was that since it was intended for the
benefit of judgment debtor, he can waive it.4

Another view was that it was based on public policy and, therefore, cannot be waived by him.5

By the Amendment Act of 1976, new sub section (1-A) has been inserted on the
recommendation of the Law Commission.6 It specifically provides that any agreement to waive
the benefit of any exemption under Section 60 shall be void.

4
Rajinder Kumar Vs. Chetan Lal, AIR 1940 Lah 65
5
Union of India Vs. Jyoti Chit Fund and Finance, (1976) 3 SCC 607
6
Law Commission 54th Report at p. 50.

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Section 61 deals where the judgment-debtor is an agriculturalist. It states that judgment-debtor is
an 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.7

7
Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7 th [Link] Book [Link].
668

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 MODES OF ATTACHMENT OF PROPERTY

Rules 43 to 54 of Order 21 lay down the procedure for attachment of different types of movable
and immovable properties. These provisions are explained below:-

1. Attachment Of Movable Property Other Than Agricultural Produce In Possession

Of Judgment- Debtor:-
Rule 43 of Order XXI deals with procedure of attachment of movable property other
than agricultural produce in possession of Judgment Debtor. It can be attached by actual
seizure thereof. But if it is perishable in nature, or if expense of keeping it is likely to
exceed its value, it may be sold. The attaching officer will be responsible for the said
property.
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.

2. Movable Property Consisting Of Livestock, Agricultural Implements Or Other

Articles Which Cannot Conveniently Be Attached:-
Rule 43-A provides for the attachment of the said property. It can be attached by leaving
the same in the custody of a respectable person as the custodian.
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 Judgment- debtor 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 Judgment- debtor or the Decree- holder
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.

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 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).

3. Attachment Of Agricultural Produce:- 

Rule 44 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 in 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 produce8.

Order XXI Rule 45 deals with the provisions as to Agricultural Produce under
attachment. Where application is for the attachment of a growing crop, it shall specify the
time at which it is likely to be harvested. 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

8
Bhabhoot Singh v. Ghanshyam Durga Prasad AIR 1962 Raj 82

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 same, the decree-holder can carry out these needful steps and recover the expenses from
the judgment-debtor.9

4. 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.

5. 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.

6. 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.

7. 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 not be
attached or sold in execution of a decree other than a decree passed against the firm or

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O21 r 45(2)

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 against the partners in the firm as such. However, the general rule has exemptions
otherwise.

Attachment can be done by making an order:

 Charging the interest of the partner in the partnership property;

 Appointing a receiver of the share of the partner in profit;

 Directing accounts and enquiries;

 Ordering sale of such interests.

In Ashuthosh v. State of Rajasthan10, 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.

8. Execution Of Decree Against Firm (Rule 50):-

Decree against the firm can be executed against

 partnership property;

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

 a person who has admitted himself to be a partner ; and

 one who has been served with notice as partner but has failed to appear.

10
(2005) 7 SCC 308

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 9. 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.

10. 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. 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 requesting that such property or any interest or dividend thereon, may be held
subject to the orders of the court.. 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.11

11. Attachment Of Immovable Property:-

Sec.60 & 64 and Order XXI Rule 54 deal 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

11
Kanhaiyalal v. D.R. Banaji AIR 1958 SC 725

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 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 Law12. 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.

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

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 PRECEPT

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 judgment-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 judgment-
debtor is lying to attach any property specified in the percept.

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.13

It is the interim attachment of the property which lies outside the jurisdiction of the court which
has passed the order. To protect the interest of the decree holder on his application will issue
precept to the court in whose jurisdiction property is situated to attach the property of the
judgment-debtor. The interim order for attachment is valid for the period of only 2 months unless
the case is covered by the proviso.14 An order of permanent attachment is, therefore, illegal. 15As
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

13
Manganese Ore (India) Ltd v Mangilal Rungta, AIR 1981 Del 114
14
Proviso to Section 46(2)
15
Gurdiyal Singh Vs. Khazan Chand, AIR 1936 Lah 486

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 GARNISHEE ORDERS

Order XXI Rule 46-A to 46-I of CPC deal with Garnishee Orders. The word 'Garnish' is
derived from an old French word 'garnir' which means to warn or to prepare.
Garnishee means a judgment-debtor's debtor . He is a person or institution that is indebted to
another whose property has been subject to garnishment. He is a person who is liable to pay a
debt to a judgment debtor or to deliver any movable property to him. Garnisher is a judgment-
creditor (decree-holder) who initiates a garnishment action to reach the debtor's property that is
thought to be held or owed by a third party.

A 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 court to attach money or goods belonging to the judgment debtor in the hands of a
third person. It is a remedy available to any judgment creditor. The court order is known as
garnishee order. The purpose of the order is to protect the interest of the creditors. 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 the defendant.

Order 21 Rule 46 A to 46 I have been newly inserted in the Code of Civil Procedure by the
Amendment Act, 1976. They lay down the procedure in garnishee cases. Prior to amendment,
opinion expressed by various Courts was that the Court had no power to compel a garnishee to
pay debt in Court and in case a garnishee on appearance denied the debt, it was duty of the Court
to enquire that if debt was due and when garnishee was held liable to pay, except on certain
contingencies, it was not permissible to call upon him to pay the amount into Court . The object
of newly inserted Rule 46A is to render the debt due by the debtor of the judgment debtor
available in execution to the decree holder and not to drive him to a suit. The court may, in the
case of debt (other than a debt secured by a mortgage or charge) which has been attached under
Rule 46, upon the application of the attaching creditor, issue a notice to garnishee liable to pay
such debt, calling upon him either to pay into court the debt due from him to the judgment debtor

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or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear
and show cause why he should not do so.

In Kuchimanchi Nagamani vs. Mantri Prasada Agnihotrudu and others, the petitioner filed
suit for recovery. During the pendency of suit the Order of garnishee attachment of amount lying
with Government department was passed but no objections were raised by the government
authorities at that time and therefore, the Order became final. Later, when the petitioner applied
for withdrawal of amount, the Government Authorities objected. The Hon'ble Court while setting
aside the objections held that the authorities did not raise the objections at relevant time and
therefore, the objections are not to be entertained.

NOTICE

Rule 46-A requires a notice to be issued to a garnishee before a garnishee order is passed against
him. If such notice is not issued and opportunity of hearing is not afforded before passing an
order, the order would be null and void.16

EFFECT OF PAYMENT-

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

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

APPEAL-

Orders passed in garnishee proceedings are appealable as “decrees”.

DETERMINATION OF ATTACHMENT

16
Surinder Nath Vs. Union of India, 1988 Supp SCC 626.
17
Rr. 46-E, 46-F, 46-G
18
Rr. 46-B, 46-H

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According to Rules 55 to 58, an attachment under the code will be determined by the following
circumstances:-

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

PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT-

SECTION 64

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 in custody for being dealt with by the court in
accordance with law.19 It merely prevents and avoids private alienations; it does not confer any
title on the attaching creditors. Private 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. When once attachment is made, and if there
19
Krishan v Travancore Bank Ltd,AIR 1956 TC 34.

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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.

OBJECT:-

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. The objective of this section is to prevent any sort of fraud on the decree-
holders and secure their interest[64]. But the section also enshrines that this does not apply in
cases where the agreement for alienation was made before the attachment.

CONCLUSION

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 realize the fruits of the decree.
The execution is complete when the judgment-creditor or decree-holder gets money or other
thing awarded to him by the judgment, decree or order.

Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of the different type of situation and provide effective remedies not only to the
decree-holder and judgment-debtors but also to the objectors and third parties.

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A decree can be executed by various modes which include delivery of possession, arrest, and
detention of the judgment-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.

BIBLIOGRAPHY

 BARE ACT :-
1. Code of Civil Procedure, 1908

 BOOK :-
1. Takwani, C.K., “Civil Procedure with Limitation Act,1963.”7th Edition, Eastern Book
Company

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 WEBSITES :-
1. [Link]
2. [Link]
3. [Link]
4. [Link]

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