Attachment of Property And Sale in Execution
Section 60 CPC – Property liable to attachment and sale in execution of decree
(1) The following property is liable to attachment and sale in execution of a decree, namely, 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, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor or by another person in trust for him or on his behalf:
Provided that the following properties shall not be liable to such attachment or sale, namely:
(a) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to 2[an agriculturist or a laborer or a domestic servant] and occupied by him;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners of the Government 3[or of a local authority or of any other employer], or payable out of any service family pension fund 4notified in the Official Gazette by 5[the Central Government or the State Government] in this behalf, and political pension;
6[(h) the wages of laborers and domestic servants, whether payable in money or in kind 7[***];]
8[(i) salary to the extent of 9[the first 10[11[one thousand rupees]] and two thirds of the remainder] 12[in execution of any decree other than a decree for maintenance]:
13[Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty?four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty?four months, be finally exempt from attachment in execution of that decree;]]
14(ia) one third of the salary in execution of any decree for maintenance;]
15[(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]
(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 16[1925 (19 of 1925)], for the time being applies in so far as they are declared by the said Act not to be liable to attachment;
17[(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;
(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;
(kc) the interest of lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;]
18[(l) any allowance forming part of the emoluments of any 19[servant of the Government] or of any servant of a railway company or local authority which the 20[appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to 21[any such servant] while under suspension;]
(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by 22[any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and
(p) where the judgment debtor is a person liable for the payment of land-revenue; any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.
[Explanation I.-The moneys payable in relation to the matters mentioned in clauses (g), (h), (i) (ia), (j), (l) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.]
[Explanation II. In clauses (i) and (ia)] ?salary� means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.
[Explanation [III] -In clause (l) ?appropriate Government� means
(i) as respect any – [person] in the service of the Central Government, or any servant of [a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government;
29[***]
(iii) as respects any other servant of the Government or a servant of any other 30[***] local authority, the State Government.]
31[Explanation IV.For the purposes of this proviso, wages includes bonus, and labourer includes a skilled, unskilled or semi skilled laborer.
Explanation V.For the purposes of this proviso, the expression ?agriculturist means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner, or agricultural laborer.
Explanation VI.?For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land?
(a) by his own labour, or
(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.]
[(1A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.]
(2) Nothing in this section shall be deemed 33[***] to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land, 34[***].
Attachment of Property
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.
The primary object of attachment of property is to give notice to the judgmentdebtor not to alienate the property to anyone as also tot he general public not to purchase or in any other manner deal with the property of the judgment-debtor attached in execution proceedings. (See: Hamda Ammal v. Avadiappa Pathar, (1991) 1 SCC 715
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 judgment-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit and may be attached and sold in execution of a decree against him. (See: Balkrishan Gupta v. Swadeshi Polytex Ltd., AIR 1985 SC )
Property which cannot be attached: Sections 60 and 61
Section 60(1) declares that the properties specified therein are exempt from attachment and sale in execution of a decree. The list enumerates certain properties such as necessary wearing apparel, cooking vessels, bedding, tools of artisans, implements of husbandry, houses of agriculturists, wages, salaries, pensions and gratuities, compulsory deposits, right to future maintenance, etc. The exemptions listed in the proviso are cumulative and the judgment-debtor may claim the benefit of more than one clause if he is qualified to do so. (See: Radhey Shyam v. Punjab National Bank, (2009) 1 SCC 376)
Section 61 CPC – Code of Civil Procedure – Partial exemption of agricultural produce.
The State Government 1[***] may, by general or special Order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in exaction of a decree.
1. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, sec. 2 and Sch. I
Section 62 CPC – Code of Civil Procedure – Seizure of property in dwelling-house
(1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.
(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.
Section 63 – “Property attached in execution of decrees of several Courts”
(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.
Explanation.-For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.
Section 64 – “Private alienation of property after attachment to be void”
1[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
2[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.
Explanation. For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.
Sections 36 to 74, Sections 144, 146 & 148 Code of Civil Procedure and Order 21
Section 64 – “Private alienation of property after attachment to be void”
Section 64(1) enacts that a private alienation of property after attachment is void as against claims enforceable under the attachment. (See: Om Prakash v. Ganga Sahai, (1987) 3 SCC 553) •
The alienation, however, is not absolutely void against all the world, but is void against the claims enforceable under the attachment. •
The primary object of this provision is to prevent fraud on decree-holders and to keep intact the rights of attaching creditors and of those creditors who have obtained decrees and are entitled to satisfaction out of the assets of the judgment debtor.
Section 65 of Code of Civil Procedure 1908 “Purchaser’s title”
Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
Notes –
On the sale becoming absolute the property shall be deemed to have vested in the purchaser from the time of the sale of the property and not from the time when the sale becomes absolute. The decree-holder purchaser becomes owner from the date of sale and not merely from the date of confirmation.
According to section 65, C.P.C., it is the confirmation of the sale that passes the title and the auction-purchaser becomes the owner of the property from the date of the sale. Under Order XXI, Rule 94, the vesting of title is not made dependent on the issue of the sale certificate.
Section 67 of Code of Civil Procedure 1908 “Power for State Government to make rules as to sales of land in execution of decrees for payment of money”
(1) The State Government may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interests are so uncertain or undermined as, in the opinion of the State Government to make it impossible to fix their value.
(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of and in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette, declare such rules to be in force, or may by a like notification, modify the same.
Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.
(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.
Delegation to Collector of power to execute decrees against immovable property
No comment