Attachment of Property

• Sections 60 CPC to section 64 CPC, Rules 41-59 of Order 21= Attachment of property in execution of a decree.
• Attachment is a preliminary stage to sell the property in execution proceedings.
• Section 60 CPC= what properties may be attached and what not.

Attachable properties (Section 60 CPC)

Land, House or other building, goods, money and bank notes, cheques or bill of exchange, hundies, promissory notes, Government securities, bonds etc, debts, shares in a corporation and all other saleable properties (movable or immovable) belonging to the judgment debtor or over which he has a disposing power. Section 60 is not exhaustive.

Exempted properties (Section 60 CPC):

• Necessary wearing apparel/cooking vessels beddings/personal ornaments linked with religious usage;
• Tools of artisan/implements of husbandary, cattle, seed grains;
• Houses/other buildings of agriculturists/labourer/domestic servant;
• Books of account;
• Stipends and gratuities allowed to pensioner;
• Wages and salaries; pay and allowance of air/naval/army mem; allowances declared by any Indian law to be exempt;
• Compulsory deposits and insurance premium; interest of a lessee of a residential buildings;
• Any movable property which is exempted from sale of recovery of arrears of land revenue.

The following rights/interest are also exempted:- A mere right to sue for damages, any right of personal service, a right of future maintenance, an expectancy of succession by survivorship etc.

Section 61 CPC empowers the State Government to exempt “agricultural produce” from attachment.

Attachment of Salary:

In a decree of Maintenance (1/3 portion is exempted)

In any other decree (First Rs. 1000/- + 2/3 of the rest of salary is exempted)

If there are two or more decrees and any portion of attachable salary is already attached for 24 months, such portion becomes exempt for a further period of 12 months. Further if such attachment is made in execution of one and the same decree for 24 months, even the attachable portion becomes exempt.

Judgments on Attachment of Property

Income Tax Act, 1961, Section 271 (1)(c) and Schedule II, Rules 60 and 61 – Civil Procedure Code , 1908, Section 65 – Auction of attached property for recovery of debt by Income Tax Department – Protection of third party auction purchaser’s interest – Such interest continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise – Strangers to the decree are afforded protection by the court because they are not connected with the decree – Unless the protection is extended to them the court sales would not fetch market value or fair price of the property .

Punjab Land Revenue Act, Sections 75 an 72 – Attachment and sale of property for recovery of arrears of revenue due to State – Building used for residence is not exempt.
Held that the exemption is only to properties specifies under the act – No provision in the Act corresponding to clause (ccc) (as applicable to Punjab and Haryana state) to proviso to sub- section (1) of Section 60 Civil Procedure Code Act a complete code providing modes and machinery for recovery of arrears of revenue – Provisions of Section 60 Civil Procedure Code not applicable to attachment and sale in revenue recovery proceedings under the Act.

Civil Procedure Code , 1908 Section 60 Transfer of Property Act, 1882 Sections 130 and 6 (e) Contractor entering into arrangement with bank – Bank agreeing to finance the contracts and advance monies to contractor against bills for supplies – Execution of power of attorney in favour of Bank to collect bills due to executant or contractor towards Bank advances – Contractor handing over the bill to the Bank for collection with an endorsement to pay to Bank – Bank sent the bill for payment but before it received the payment, the amount due under the bill was attached by a creditor of the Contractor in execution of a money decree obtained by him against the Contractor – Held, it was an equitable assignment of specific fund by way of security and not a pay order – That attached under Section 60 Civil Procedure Code not valid.

Civil Procedure Code , Section 60 , Order 21 Rule 54 – Indian Succession Act, 1925 Sections 211 (1), 307 (1) Attachment – Sale in execution – Execution – Property liable to attachment and sale in execution of decree – Three executors of the Will of property – One relinquished his share – Two executors became legal representatives of the deceased testator for all purposes and the properties bequeathed vested in the two executors – Unless the two executors assent, the title of the property would not pass on to the legatee – They can only jointly represent the estate of deceased – Mortgage or sale by any one of the executors unilaterally would not bind the estate of the deceased – Execution, sale or attachment of such property for the cause of only one executor without the assent of the other is null and void and does not confer any right and title on the auction purchaser in execution – Does not constitute any transfer in law.

Civil Procedure Code , 1908, Section 60 (1)(g) – Pension – Implies periodical payments of money by the Government – Political pension – Exemption from attachment – Amount payable as privy purse to Ruler of former Indian State – Is a political pension within meaning of Section 60 (1)(g) and as such as protected from execution – It cannot said to be a debt or other property over which or the proceeds of which he has disposing power within the main part of Section 60 (1).

Kerala Service Rules, Part-III, Rule 124 – Civil Procedure Code , 1908 Section 60 (1)(g) Father’s pensionary benefits – Stipend and gratuity – Exemption from disbursing arrears of maintenance to children – Legislature knowingly included words “family pension fund” in Section 60 (1)(g) of the Code. Therefore,it is held that wife and children do not fall within the fold of the exemption to Section 60 (1) of Code, as family pension fund that is payable to family/dependents of pensioner is exempted from attachment only by a person falling outside purview of family – Rule 124 equally applicable to Section 60 (1)(g) of Code – No legal bar for children to attach stipend and gratuity of petitioner father – Children have first charge over properties of petitioner and their right to be maintained by petitioner overrides all such exemptions in law.

Civil Procedure Code , 1908 Section 60 (ccc) Motor Vehicles Act, 1988 Section 166 Order of attachment of property – Validity of – Recovery of dues as land revenue – Protection under section 60 (ccc) shall not be applicable to award passed by MACT as compensation is to be recovered has arrears of land revenue.

Civil Procedure Code , 1908, Section 60 (1)(ccc)- Recovery of Debts Due To Banks And Financial Institutions Act, 1993 Section 19 – Only residential property of the judgment debtor – Not protected from attachment and sale in execution of a decree – Protection available only in exceptional cases of agriculturists, labourers and domestic servants – Held that if the submission of the petitioner premised on the basic needs of a man for shelter were to be accepted, there would be no justification to allow the attachment and sale in execution of a decree of any residential property , of any person whatsoever – Property not exempted from attachment and sale in execution of a decree of a Civil Court under the Code.

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Civil Procedure Code , 1908, Order 21, Rules 41(1), (3), Rules 37, 38, 39 and 40, Sections 51(c), 55, 56, 57, 58, 59, 60 , 61, 62, 63 and 64 – Indian Evidence Act, 1872 Sections 106 and 165 Execution proceedings – Attachment of property – Arrests and detention – Execution of decrees/awards deserves special attention considering that inordinate delay in execution proceedings frustrates decree holder from reaping the benefits of decree award – Guidelines issued by Court in this regard – In event of default of judgment debtor to file affidavit within stipulated time, Executing Court shall consider detention of judgment debtor in civil prison for 3 months under Order 21 Rule 41(3), Civil Procedure Code by directing decree holder to deposit subsistence allowance @ Rs. 40 per day per person with Executing Court for detention of judgment debtor – Decree holder is at liberty to serve interrogatories and seek production of relevant documents from judgment debtor – Judgment debtor not satisfying decree/award despite having means to pay, decree holder to file application for detention of judgment debtor – Executing Court to issue show cause notice to judgment debtor to show cause as to why he should not be committed to civil prison – Even after release from detention, judgment debtor shall remain liable to satisfy decree/award in terms of Section 58 (2), Civil Procedure Code – Judgment debtor who has no means to satisfy decree/award, cannot be detained in civil prison – Steps to be taken by Executing Court – If judgment debtor has made any misrepresentation, concealment or false statement in affidavits, decree holder is at liberty to invoke Section 340, Criminal Procedure Code.

Civil Procedure Code , 1908 Section 60 (c) Exemption from attachment of property – Seeking recovery towards value of gold ornaments – Dismissal of EP holding that the third respondent to whom the property belongs, is found entitled for benefits of Section 60 (c) of Civil Procedure Code – Property in question is house/land appurtenant to house of JD, occupied by domestic servant – The house and the land immediately appurtenant thereto is necessary for respondent’s enjoyment and therefore, the same cannot be attached for sale – Therefore, her claim will definitely come under Section 60 (c) – No interference – Petition dismissed.

Civil Procedure Code , 1908 Section 60 Motor accident claim – Compensation and attachment and sale of property in execution of decree – Grievance of married sister and son of owner and driver of offending vehicle that they were not given opportunity to lead evidence before execution Court that it was sole residential house of LRs or sister is a co-sharer – Held, issue being whether Section 60 is applicable at all or not to property on ground of it being sole residential house of LRs – Impugned order is set aside with execution Court directed to frame specific issues.

Civil Procedure Code , 1908 Section 60 (1) Scope of provision – Held, Section 60 (1) details out various forms of property owned by a judgment debtor which can be attached and sold in execution of a decree – However, the ones which are exempt from attachment are listed out in Clauses (a) to (p) – Clause (g) of the very proviso alludes one such set of properties i.e. stipend and gratuity.

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