Order XXI CPC, Attachment of property under Execution Proceedings PPT

This file deals with the Section 60-64 of CPC,1908, which talks about the Attachment of property in execution proceedings.
I have tried to make it easier for the students to understand the concept.
In case of any query the undersigned can be reached by email, the address of which has been given in the third last slide.

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

2. 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)

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

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

5. 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.

6. 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.

7. 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.

8. 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 ).

9. 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.

10. 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.

11. 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 .

12. 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.

13. 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.

14. 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 .

15. 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 .

16. 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 – [email protected].