Workshop on Execution Dated 03-06-2017

ATTACHMENTS
Paper submitted by
A. Radha Krishna Murthy,
Junior Civil Judge, Nidamanoor

Sub topics

 Modes of Execution
 Attachment of property, movable and immovable
 Garnishee Orders
 Exemptions from Attachment
 Determination and Removal of Attachment

MODES OF EXECUTION :

Sec.51 of CPC provides the following modes of execution of decrees

subject to such conditions and limitations as may be prescribed.

(a) By delivery of any property specifically decreed ;

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

property ;

(c) By arrest and detention in prison for such period not exceeding the
period specified in Sec.58, where arrest and detention is permissible under
that section;

(d) In such other manner as the nature of the relief granted may
require.

Decree Holder is dominus litus

It is for the Decree Holder to choose mode of execution among those

available to him. Either the Judgment Debtor or the Court cannot insist upon
the Decree Holder to choose a particular mode of execution
[V. Dharmavenamma – Vs – C. Subrahmanyam Mandadi1].

1 2009(5) ALD 487

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In an EP for arrest of Judgment Debtor, if the Decree Holder satisfies

the Court that the Judgment Debtor has sufficient means to satisfy the
decree, the Court cannot refused to order arrest, on the ground that there is
alternative remedy of attachment available to the Decree Holder for
realization of decretal amount [Gudivada Munemma – Vs – Jawardhal2]

Precept

Before going to the topic Attachments, let we know about the Precept.
Sec.46 of CPC deals with Precept. The Court who has passed the decree will
issue a Precept to any other Court which is competent to execute such
decree, to attach any property belonging to the Judgment Debtor and specify
the same in the Precept. The object of Section 46 is to enable the decree-
holder to obtain an interim attachment of any property of the Judgment-
debtor situated within the jurisdiction of another Court when it is
apprehended that would otherwise be deprived of the fruits of the decree.

The Form No.2 of Appendix E of CPC prescribes the Form of Precept.

ATTACHMENT OF PROPERTY, MOVABLE AND IMMOVABLE :

Sections 60 to 64, Order XXI Rules 41 to 54 of CPC and Rules 242 to

259 of Civil Rules of Practice deal with Attachment of Property.

Order XXI Rule 41 of CPC is sufficiently amended to facilitate the

matters to call for an affidavit of the asses of the Judgment-debtor. This rule
is applicable to a case of unascertained mesne profits and also to a case of
unascertained damages. The object of this rule is to obtain discovery for the
purpose of execution in obtaining the particulars of the property of Judgment-
debtor with a view to avoid delay.

Order XXI Rule 41 is applicable to execution by arrest and detention

also. In Voona Surya Rao – Vs – Salina Sarathi and others 3, the Hon'ble
High Court held that the application under Rule 41 is allowed in EP for arrest
also.

2 2006(6) ALT 587

3 1997(6) ALD 122

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Non-examination of Judgment-debtor as to his assets cannot be used

as a ground of prejudice Under Order XXI Rule 90 of CPC [Karnataka
Bank – Vs – K.Shamanna and others4]

Attachment in case of decree for Rent or Mesne Profits or other

matter, amount of which to be subsequently be determined :-

Order XXI Rule 42 of CPC Says attachment of property in case of decree

for Rent or Mesne Profits. A decree directing an inquiry as to rent or mesne
profits or any other matter in a decree for money are within the meaning of
this rule. Attachment of property of Judgment-debtor cannot be made under
this rule after the amount is ascertained in an enquiry [Ghanshamdas – Vs-
Shivarama Subramaniam5]

In N. Janakamma – Vs – B.Venkata Lakshmamma 6, it was held that

mere pendency of an application for a decree for mesne profits cannot
constitute a basis for filing an application under Rule 42 of Order XXI. It is
mandatory that a decree must be existing directing payment of mesne
profits, before the said provision is pressed into service.

Attachment after preliminary decree and before final decree

Where the attachment is sought after passing of the preliminary decree
and before final decree, such attachment is covered by Order XXI Rule 42
apart from Order XXXVIII Rule 5 of CPC. [Ouseph Sakaria – Vs – Cherian
Joseph]7

Attachment of movable property other than agricultural produce in

possession of J.Dr.

Rule 43 of Order XXI deals with procedure of attachment of movable

property other than agricultural produce in possession of J.Dr. Rule 44 deals
with attachment of agricultural produce. Attachment under Rule 43 by actual
seizure of movables of Judgment-debtor. If they are with some other person
the procedure prescribed under Rule 46 should be followed.

4 AIR 1972 Kant 321

5 AIR 1986 Mad 17
6 2007(3) ALD 169
7 AIR 1971 Ker 159 DB

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Basic distinction between attachment of movable property and

immovable property

The basic distinction between attachment of movable property and

immovable property is that in the former case application of physical
possession is necessary and in the latter it is not so. The attachment of
movable property is legally effected only by actual seizure and possession
[B.Venkatadri Reddy Vs – P.A. Vanajakshi8]

Rules from 252 to 257 of Civil Rules of Practice deal with the Procedure
to be followed for attachment of movable property.

As per Rule 252, when moveable property is attached in execution of

any civil process, the attaching officer shall give a copy of the list of attached
property with description sufficient for identification to the person from
whose possession property is attached. If he is not present, then, to any
adult male member of the family of such person, who is present.

Sub-rule (1) of Rule 253 says that if the property attached consists of
Government or other securities, jewels or other valuable articles of small
bulk, the Nazir shallkeep the same together with a descriptive list in a box
(not the ordinary cash chest of the Court) under lock and seal and send the
box for safe custody to the nearest Government Treasury under the orders of
the Judge.

Sub-Rule (2) says that in other cases, attached property brought to the
Court shall be retained by the Nazir in the Court House if it can conveniently
be stored or kept there.

Time of attachment
Referring to Sec.62 of CPC which speaks that an attachment of
movable property can be made after sunrise and before sunset and the exact
time of sunrise or sunsel will vary with the moth of every year. It is not the
law that the attachment should be made at or before 6:00 PM or 6:30 PM
[Tika Ram – Vs – State9]

8 2005(1) ALT 640

9 AIR 1960 All 453

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Decree-holder's custody

Whether the attaching Amin keeps the movable property attachd in his
custody or entrusts it to a Sapurdar, the possession of the Amin or Sapurdar,
is in law the possession of the Court. In case the property is kept in the
custody of the decree-holder, the decree-holder's custody is not in his
capacity as decree-holder but only as the bailee of the Sapurdar. [Sapurdar
Teeka & Ors – Vs – State of UP10]

Conditions to be satisfied for Rule 43

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. Either it is taken possession of by custodian
or other person; it shallbe regarded with the Court only.

Rule 43-A contemplates three contigencies. 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 J.Dr 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 J.Dr or the D.Hr 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. 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)

Attachment of Agricultural Produce (Order XXI Rule 44)

This rule 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,

10 AIR 1961 SC 803

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the attachment shall be made by 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 prduce has been cut or gathered, ont he thrashing floor
or place for treading out grain or the like or fodder-stock on or on 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 produce [Bhabhoot Singh – Vs – Ghanshyam
Durga Prasad11].

Order XXI Rule 45 deals with the provisions as to Agricultural Produce

under attachment.

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. If the Court finds that the claimant has share in the property attached,
the procedure is to release the entire property from attachment and to
proceed by way of attachment under this rule.

11 AIR 1962 Raj 82

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Attachment of Immovable property

Sec.60 & 64 and Order XXI Rule 54 deals 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 Government , then the
said Publication shoould 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 Law [Vakaruddin Alikhan – Vs – Syed Abdul Mazid 12]. 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 [Deshbandh Gupta – Vs – N.L.
Anand13].

No separate attachment is required

No separate attachment is necessary in execution proceedings when

property was attached before judgment as contemplated Under Rule 5 of
Order XXXVIII CPC [N.Mohana Kumar – Vs – Bayani Lakshmi
Narasimhaiah14].

Private Transfer – Sec.64

Sec.64 contemplates only one attachment and no other. When once
attachment is made and if there is any transfer or delivery of attached

12 2005 (1) ALT 775

13 (1994) 1 SCC 131
14 2000 (1) APLJ 56

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property contrary to such attachment, such a transfer would be void as

against all claims enforceable under that attachment. 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.
Necessity of attachment

Attachment of the property is neither necessary nor essential step for

sale of property of judgment-debtor [Pedda Edla Ram Kishtaiah – Vs –
Manne Pochaiah15]. Failure to attach the property before the Court sale is
only an irregularity which becomes material only if the property had in fact
been privately transferred before the Court sale [Kanhaiya Lal – Vs –
Dr. D.R. Banaji16].

Failure of J.Dr to attend in pursuance of notice

Where a Judgment-debtor having received notice under Order XXI Rule

54(1-A) of CPC to attend the Court fails to attend and give the valuation of
the property to be included in the proclamation of sale and thereby his
valuation is not included in the sale proclamation, held, he cannot complain
that the sale is vitiated [V.V.Narayan Chetty – Vs – Nenla Dhanamma17]

Order XXI Rule 54(1-A)

Rule 54 provides for the attachment of immovable property and the

procedure for proclamation of such attachment. In order to minimise the
delay in execution of decree this sub-rule (1-A) was inserted to provide that
the order shall also specify a date on which the Judgment-debtor is to attend
the Court to take notice of the date fixed for settling the terms of
proclamation. Mere issuance of notice under Order XXI Rule 54 cannot be
construed as notice under sub-rule (1-A) of Rule 54 of Order XXI CPC
[P. Narayana Reddy – Vs – M. Reddeppa Reddy18].

15 AIR 1967 AP 148

16 AIR 1958 SC 725
17 AIR 1984 AP 159 (DB)
18 2004 (5) ALT 226

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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.
The prescribed form used for issuance of Order of Attachment Under Order
XXI Rule 51 is Form No.20 of Appendix-E of CPC.

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 be attached or sold in execution of a decree
other than a decree passed against the firm or against the partners in the
firm as such. However, the general rule has exemptions otherwise.

Sub-rule (2) provides that “on the application of the holder of a decree
against a partner, the Court may make an order charging the interest of such
partner in the partnership property and profits with payment of the amount
due under the decree, and may, by the same or a subsequent order, appoint
a Receiver of the share of such partner in the profits (whether already
declared or accruing) and of any other money which may be coming to him
in respect of the partnership and direct accounts and inquiries and make an
order for the sale of such interest or other orders as might have been
directed or made if a charge had been made in favour of the decree holder
by such partner, or as the circumstances of the case may require.

Execution of Decree against firm (Order XXI Rule 50)

Decree against firm can be executed against (i) partnership property;

(ii) any person who has appeared individually in his own name and has been
served with notice Under Order XXX Rules 6 or 7 ; (iii) a person who has
admitted himself to be a partner ; and (iv) one who has been served with
notice as partner but has failed to appear.

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Distinction between Order XX and Order XXI Rule 50

Rule 50 should be read with the provisions of Order XXX; the latter
deals with the procedure in suits instituted by or against firms, while this rule
deals with the mode of execution of decrees which have been obtained
against firm in the firm name [Gambhir Mal Pandiya – Vs – JK Jute Mills
Company Limited, Kanpur19].

Liability of partners is joint and several

In Ashuthosh – Vs – State of Rajasthan 20, 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.

GARNISHEE ORDERS :

Order XXI Rule 46 to 46-I, Rule 48, 48A and 52 of CPC deal with
Garnishee Orders.
Order XXI Rule 46 – Attachment of debt, shares and other property
not in possession of Judgment Debtor

This rule deals with Garnishee Proceedings. These apply when monies
of the Judgment-debtor are in the hands of third parties. Order arresting
debt in the hands of debtor is known as Garnishee Order. The prescribed
form used for issance of prohibitory order under Rule 46 is Form No.18 of
Appendix-E of CPC.

Attachment of money
Decree-holder can proceed against garnsihee only if the Judgment-
debtor had the present right to recover money from garnishee. Until and
unless the bills are drawn and paid, the same cannotbe treated as the
property of Judgment debtor and hence not attachable [Hyderabad
Co-operative Commercial Corporation Ltd – Vs – Syed Mohiuddin
Khardri21].
19 AIR 1963 SC 343
20 (2005) 7 SCC 308
21 AIR 1970 AP 162

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Attachment of Fixed Deposit Receipt in Bank

Banker's lien would not by itself be a bar for attachment of Fixed
Deposit in execution proceedings against the customer. The banker in such a
case is a garnishee, when attachment notice is served has to go before the
Court and obtain suitable directions for safeguarding its interest. [Syndicate
Bank – Vs – Vijay Kumar22]

In Radhe Shyam Gupta – Vs – Punjab National Bank Ltd and

another23 case, the Hon'ble Supreme Court held that Pensionary benefit and
gratuity received in cash and converted into Fixed Deposit Receipts, such
FDRs cannot be attached.

Procedure under Rule 46 to be followed for attachment before

Judmgent also

In K.Chandrasekharam – Vs – Vijay Bhargavi Chit Fund Pvt.Ltd 24,

it was held that the procedure and modalities of attachment for recovery of
decretal amount applies mutatis mutandis to attachment before judgment as
well. It is stated that the rules contained in Order 38 do not lay down any
particular method of attachment before Judgment. Evidently the same
procedure under Rule 46 has to be followed.

Before deal with Garnishee Proceedings, let us know Attachment of

Salary or allowance of a Government as well as Private Employees.

Attachment of salary or allowance of a Government Employee

Order XXI Rule 48 deals with attachment of Salary or allowances of

servants of Governnment 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.

22 AIR 1992 SC 1066

23 AIR 2009 SC 930
24 2000(1) ALD 761

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Section 39 CPC has no application to the attachments under Rule 48 of

Order 21 CPC [Salem Advocates Bar Association – Vs – Union of
India25].

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 [Nanduri Vijaya
Bhaskar – Vs – Sathyamsetty Veera Venkata Apparao26]

Not necessary that JDR and Garnishee are within the jurisdiction of
the Court

In Adithya Electronics, Hyderabad – Vs – AS Impex Ltd., New

Delhi27, the Hon'ble High Court took the view that since the Judgment Debtor
and Garnishee are outside the jurisdiction of the executing Court, the
attachment cannot be granted.

In Shri Ram Chits Pvt. Ltd., - Vs – V. Govindaswamy 28, the Hon'ble

High Court of AP considered the following questions

(a) whether simultaneous execution is maintainable and the ground

for the dismissal recorded by the Court below are not sustainable ; and

(b) whether the Court has no jurisdiction.

and it was held that so far as the attachment of salary is concerned,

Order 21 Rule 48 empowers the Court to attach the salary and allowances of
the Government servant, whether the J.Dr or the disbursing officers is or is
not within the jurisdiction of executing Court and the only limitation is that it
should be done subject to the provisions of Sec.60 of CPC.

25 2005(5) ALD 1 SC
26 1987(2) APLJ 225
27 2004(2) ALD 779
28 2011(3) ALT 528

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Choice of Decree Holder in a joint decree

It is the opinion of the Court that the Decree holder has a right to
proceed against any of the Judgment debtors including guarantor in the first
instance in view of Sec.128 of Contract Act and that liability of surety is co-
extensive with that of principal debtor unless it is otherwise provided by
contract. In case the decree is a joint decree it does not place any fetter on
the right of the Decree holder to go on against any of the judgment debtors
of his choice for recovery of amount due [MG Brothers Finance Ltd – Vs –
J.Badrinath29]

Attachment of Salary is only once for a decree

In Shaik Noorjahan – Vs – M. Rajeswari 30, it was held that when

any part of attachment portion of salary of Judgment Debtor was under
attachment in execution of decree for a period of (24) months it is exempted
from further attachment in execution of same decree even if there is a gap of
(12) months after completion of (24) months of attachment, in view of
Proviso to Clause (i) of Sec.60(1) of CPC.

GARNISHEE PROCEEDINGS :

Order XXI Rule 46-A CPC deals with notice to Garnishee. There must be
a creditor and debtor relation between judgment-debtor and garnishee to
enable the Court to pass an order Under Order XXI Rule 46-A of CPC.

Order XXI Rule 46-B Says that if the garnishee did not pay the amount
in pursuance of notice and does not appear and show cause in answer to the
notice, the Court may order the garnishee to comply with the terms of such
notice; and on such order execution may issue as though such order were a
decree against him.

Trial of Disputed Questions

29 2007(1) ALD 451

30 2010(4) ALT 787

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Order XXI Rule 46-C says that it is open to the garnishee to raise
objections immediately after the order to attachment is made or at least
while making the deposit. Failure to raise objection at appropriate time, bars
the garnishee to raise the objections at the time of issuance of cheque to the
decree-holder is not permissible [Kuchimanchi Nagamani – Vs – Mantri
Prasada Agnihotrudu31].

Where the movable property was not in possession of Judgment-debtor

but in custody of Court, it could not be attached by virtue of exclusionary
caluse of Order XXI Rule 46-C of CPC [Surender Singh Balaji – Vs – Kitty
Steels Ltd.32]

Order XXI Rule 46-D says that if the debt belongs to some third person,
or that any third person has a lien or charge on or other interest in such debt,
the Court may order such third person to appear and state the nature and
particulars of his claim, if any, to such debt and prove the same.

Order XXI Rule 46-E says that after hearing such third person or
persons referred to in 46-D, who may subsequently be ordered to appear, or
where such third or other person or persons do not appear when so ordered,
the Court may make such order or orders with respect to the lien, charge or
interest as the case may be, of such third or other person or persons as the
Court deems fit and proper.

Payment by Garnishee is valid discharge

According to Order XXI Rule 46-F, payment made by the garnishee on

notice under Rule 46A or under any such order is valid discharge as against
the J.Dr and any other person ordered to appear for the amount paid or
levied, although the decree in execution of which the application under Rule
46A was made, or the order passed in the proceedings on such application
may be set aside or reversed.

31 2001(1) ALT 385

32 2002 (6) ALT 224

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Contempt shall not be initiated against Garnishee

If a Garnishee who is directed to pay any sum of money does not pay
the amount, the remedy is to levy execution and not in an action for
contempt or disobedience or breach under Order 39 Rule 2A. [Food
Corporation of India – Vs – Sukh Deo Prasad 33]

Exemption from Attachment

The proviso to Section 60 CPC gives the items which are exempted
from Attachment. The following are the exemptions.

In case of employees
– Arrears of Salary

In [M.Prabhudas – Vs – Usirikayala Venkata Ramana 34], it was

held that it hardly makes any difference in the context of extending the
benefit under Section 60(1)(i) whether it is salary from month to month or it
is the amount accumulated as arrears of salary, the prohibition contained in
the proviso to that section would operate without any modification.

-Gratuity, etc., exempt till they reach the J.Dr

In [Gudapati Hanumaiah – Vs – Y. Lakshminarasamma35], the

Hon'ble High Court of AP was pleased to held that the exemption from
attachment of death benefits payable to deceased employee in the form of
gratuity, provident fund, insurance and other compulsory deposits are
exempted from attachment until they are actually received by the legal
representatives of the deceased employee.

In [Bandi China Ramalinga Reddy – vs – Nalluri Srinivasulu 36], it

was held that so long as pension, gratuity etc., not received by beneficiary
only they are exempted from attachment in view of Sec.60(1)(g) of CPC.
When once they reach hands of employee, the exemption would cease to
operate.

33 (2009) 5 SCC 665

34 2011(4) ALT 399
35 2009(3) ALD 330
36 2006(2) ALD 734

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HRA & DA – not exempted

The Division Bench of our Hon'ble High Court held in
K.Venkateshwarlu – Vs – D. Ranga Reddy 37, that House Rent Allowance
and Dearness Allowance which are not exempted by the State of Andhra
Pradesh, would not form part of “salary” and therefore liable for attachment
subject to the restrictions contained in clause (i) of Section 60 CPC.

Insurance amount – exempted

In Pulugu Karunakar Reddy – Vs – Shreya Financiers and Hire
Purchase38, it was held that amounts payable under insurance policy on the
life of the decreased are exempt from attachment under Sec.60(1)(kb) of CPC
for any amounts due by insured.

In Bomminayana Nirmala – Vs – Rachapathu Krishna Murthy 39, it

was held that, if a suit is filed against the successors of policy holder, the
policy amount is exempted. The fact that attachment before judgment
became final does not change the situation or the order of the Court
attaching LIC amount operates as Res Judicata.

Encashment of surrender leave – not exempted

In Balasa Rama Rao – Vs – General Manager, District Co-

operative Central Bank Ltd., Srikakulam40, it was held that – so far as
encashment of leave is concerned, since no specific exemption is provided
under the proviso to Sec.60 CPC, the same can be a subject matter of
attachment.

Exemption can be claimed at the time of sale also

In Padarthi Sambasiva Rao – Vs – Guduru Koteshwara Rao 41, it

was held that the exemption under Sec.60 of CPC can be claimed at the time
of sale, it is obvious, that the Judgment Debtor who did not raise the claim
for exemption of his house from attachment, can always has the liberty of
taking that plea at the time of sale.

37 2002 Supp. ALD 686 DB

38 2007(2) ALT 212
39 2010(4) ALT 260
40 1995(3) ALD 1045
41 1979(1) An.WR.420

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Proviso to Sec.60 is applicable to Order 38 Rule 5 also

In Bachala Narapa Reddy – Vs – Kasunnuru Bala Obaiah 42, it was

held that the protection from attachment given under Sec.60 is available
equally to the attachment before judgment also.

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. Form No.21 of
Appendix-E is prescribed for issuance of prohibitory order under this rule.

Procedure of Attachment (Issuance of notice)

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.
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 [Kanhaiyalal – Vs – D.R.
Banaji43]

Principles of Rateable Distribution applicable to Rule 52

The principle of rateable distribution is applicable to the case where

two or more decree holders obtains decree and applies for execution. The
power to rateably distribute monies vest in the attaching Court only
[S.Pulleswara Rao – Vs – M.B. Kutumba Rao44]

DETERMINATION AND REMOVALE OFATTACHMENT [Order XXI Rule

55] :
Order XXI Rule 55 deals with the automatic termination of attachment
on satisfaction of decree. This rule is not applicable to cases of attachment
made before judgment when execution petition was dismissed for default but
is applicable to the cases of satisfaction of decree.

The words “amount decreed” in Clause (a) of Rule 55 of Order XXI

means in the case of installment decree, the installment which has become

42 2000 (4) ALT 433

43 AIR 1958 SC 725
44 AIR 1977 472

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Workshop on Execution Dated 03-06-2017

due and in respect of which the attachment has been made. When money is
attached and brought into the Court in execution of decree for payment of
money, it cannot be said that the Judgment-debtor has paid the amount into
Court under Clause (a) and attachment would continue until that amount is
disposed off by the Court by paying it to the decree-holder or otherwise.

Revival of Attachment

There can be no revival of attachment when the suit is subsequently

decreed by the same Court or a superior Court. Attachment comes to an end
on the sale of property and the same is revived when the sale is set aside.

(A.RADHA KRISHNA MURTHY)

JUNIOR CIVIL JUDGE,
NIDAMANOOR

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