Order XXI CPC, Attachment of property under Execution Proceedings PPT

Code of Civil Procedure
II
By : Alisha Verma
Assistant Professor Law
Manipal University Jaipur

What we have done in CPC- II so far
• Section 37 to 47 ( Execution in
general)
• Section 51-58 ( Arrest and detention)
• Section 79-80 ( suit by or against govt.)
• Section. 113-115 ( Reference , Review,
Revision)
• Section 148A ( Caveat)
• Section 151 ( Inherent powers)
• O.XXI
• Rule 10-17 ( Application and procedure
of execution )
• Rule 26-29, O.XLI, Rule 5 ( Stay of
execution)
• Rule 37-40 (Arrest and detention)
• Rule 46-A to 46-I ( Garnishee)
• Rule 105-106 ( Hearing of the
application and setting aside the order)

We’ll be starting with Attachment of
property from next slide-

Attachment of Property
Section 60-64
Order XXI, Rule 41-57

What is attachment and why ?
• The decree may also be executed on the application of the decree holder by
• Attachment and Sale of the property of the judgment debtor
• Sale without attachment of property of the judgment debtor.
• The code lays down the rules regarding it, as to what property to attach and
what not to attach and also the procedure to effect the attachment.
• Section 60 (1) of the code talks about the property liable to be attached and
proviso of the same sub section exempts certain properties from attachment
and sale.

What properties can be attached?
Sec. 60(1)
 Land, houses, buildings, goods, money, banknotes, cheques, bills of
exchange, Hundies, promissory notes, Government securities, bond, or
securities for money, Debts, and shares.
 All other saleable property belonging to JD or over which he has a disposing
power which he may execute for his own benefit.

What properties shall not be attached ?
Sec.60 (1) proviso
There are approx. 18 items which are exempted from attachment under the provisions.
There are items such as –
 Books of account
 Stipends and gratuity allowed to pensioners
 Wages of laborers and domestic servants
 Tools of artisans ETC.
Students are expected to go through the list provided in the above mentioned
provision.

Principles behind the exemptions
At first sight it may appear that the exceptions are enumerated randomly but
there are certain principles behind the enumeration of these exceptions. The
exemptions are attributable to one or more of the following broad principles-
1. The principle of necessity-
• The item mentioned in clause (a) of the proviso is based on this principle.
2. The principle of protecting the means of livelihood-
• This justifies the exemptions in clause (b), clause (c).

3. The principle of leaving money required for subsistence-
 This explains clauses g,h,I,1a,j and l.
4. The principle of thrift-
• That the state should encourage thrift is the principle behind clause k.
5 The principle of non- transferability of the property- The property which is
not transferable by act of parties should also not be attachable under legal
process.
 This principle justifies the exemptions in clause e, f, m and n.
6. The principle of harmony with other laws-
• This principle accounts for the exemptions in clause p.

Whether exemptions can be waived by the
judgment debtor?
There was conflict of judicial opinion as to whether a judgment debtor can waive the
benefit conferred on him by the proviso.
Calcutta, Nagpur, Andhra Pradesh and Patna HC took the view that as the
exemptions were intended for the benefit of JD, he can waive them.
But Bombay HC was of the opinion that it was based on public policy and
therefore cannot be waived by him.
Then by the amendment of 1976 a new sub section 1A was inserted which says that
any agreement to waive the exemptions under section 60(1) proviso shall be
void.

Seizure of property in dwelling house
Sec. 62
(1) Executor shall not 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.

Continued..
(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.

Property attached in execution of decrees of
several courts (Sec. 63)
(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.

Private alienation of Property after attachment
to be void ( Sec. 64)
(1) Where an attachment has been made,
• any private transfer or delivery of the property attached or of any
interest there in
• and any payment to the judgment-debtor of any debt, dividend or
• other moneys contrary to such attachment,
• shall be void as against all claims enforceable under the
attachment.

Continued..
(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.

Mode of attachment of property
( Rule 41- 57)
 Students must go through the chart which has been provided in
upcoming slides. Chart makes it easier to remember things.
 Also you all must go through the provisions of the above mentioned
rules along with the chart.
 In case of any doubt do not hesitate to contact me. I can be reached at
– alisha.verma@Jaipur.manipal.edu.

Order XXI CPC, Attachment of property under Execution Proceedings PPT

Order XXI CPC, Attachment of property under Execution Proceedings PPT

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