Attachment of Property:
Attachment of property of the judgement-debtor is one of the steps taken by the decree holder for satisfaction of his decree. The underlying object of the attachment of the property is to give notice to the judgement-debtor not to alienate his property and also serves as notice to general public not to purchase or deal with the property.
Further, judgement-debtor is given an opportunity to raise funds to satisfy the decree and avoid sale of his property.
Image Source: innovategov.org
ADVERTISEMENTS:
The Sections 60 to 64 and Order 21, Rules 41 to 59 of C.P.C. deal with the subject of attachment.
Property that can be attached:
Sec. 60 – Properties liable to attachment and sale in execution of decree.
1. The following properties are liable to attachment and sale in execution of a decree, namely:
(i) Lands, houses or other buildings,
ADVERTISEMENTS:
(ii) Goods,
(iii) Money, Bank notes, Cheques, Bills of exchange, Hundis, Promissory notes,
(iv) Government securities, bonds or other securities for money, debts and shares in a corporation.
It does not mean that the properties listed above are alone liable for attachment and sale and not other. What is not included in the above list is included under Sec. 60(1) by adding the words “all other saleable property movable or immovable, belonging to the judgement-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 judgement-debtor or by another person in trust for him or on his behalf’.
ADVERTISEMENTS:
In Appasaheb vs. Bhalchandra, S.C. held that the property which is not specifically mentioned under Sec. 60(1) includes movable or immovable within scope of the words “all other saleable property”.
Property which cannot be attached Sec. 60(1) (a) to (p) declares that the following properties cannot be attached namely:
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgement-debtor, his wife and children and such personal ornaments as, in accordance with religion usage, cannot be parted with by any women;
(b) Tools of artisans, in the opinion of the Court, be necessary to enable him to earn his livelihood as such (e.g., tools of carpenters, blacksmith, tailors etc.);
(c) Houses, sites and other buildings belonging to an agriculturist or a labourer 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;
(h) The wages of labourers and domestic servants, whether payable in money or in kind;
(i) Salary to the extent of the first four hundred rupees and 2/3 of the remainder in the execution of any decree other than a decree for maintenance;
(i-a) one third of the salary in execution of any decree for maintenance;
(j) pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act, 1950 or the Navy Act, 1957 applies;
(k) All compulsory deposits and other sums covered by Provident Funds Act of 1925 and declared by ‘the said Act not to be liable to attachment;
(Ka) any sum which covered by the Public Provident Fund Act of 1968 and declared by the said Act not to be liable to attachment;
(Kb) all money payable under a policy of insurance on the life of the judgement debtor;
(kc) the interest of lessee of residential building to which the provisions of law for the time being in force relating to control of rent and accommodation apply;
(1) Any allowance forming part of the emoluments of any Government servant or Railway company may be exempted from attachment by gazette notification;
(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 an Indian law to be exempt from liability to attachment or sale in execution of decree;
(p) When a movable property is exempt from sale for recovery of land revenue, such property is not liable for attachment and sale under this section.
The question now arises whether the following are liable for attachment-
(a) Decree, (b) Salary or allowance of Private employees.
(a) Attachment of Decrees :-Order 21, Rule 53 of C.P.C. provides for attachment of decrees as well for satisfaction of decrees.
(b) Attachment of Salary or Allowance of Private Employees :-Order 21, Rule 48-A provides for attachment of salary or allowance of the Private employee, subject to Section 60 and employer shall be liable for any sum paid in contravention of this Rule 48-A.
Problems:
What should be the proper order of the Court on the following execution petitions?
(a) Where the tools of artisan are sought to be attached?
As per Section 60(l)(b) of C.P.C. the tools of artisans, as may in the opinion of the Court, be necessary to enable him to earn his livelihood, as such, are free
from liability under this section. Hence, the tools of artisan cannot be attached in execution of a decree.
(b) Where the entire monthly salary of Rs. 1,000/- is sought to be attached in execution of a maintenance decree?
The provision pertaining to attachment of salary in execution of a maintenance decree was, inserted in 60(1) by the Act 66 of 1966, which is numbered as Sec. 60(1) (1a).
Section 60(1) (1a) reads as follows “one third of the salary in execution of any decree for maintenance is liable for attachment in execution of maintenance decree”.
Therefore, the total salary of Rs. 1,000/- cannot be attached as per Section 60(1) (1a), 1/3 of Rs. 1,000/- is liable for attachment in execution of maintenance decree.
(c) Where a mere right to sue for damages is sought to be attached?
As per Sec. 60(1)(e), that a mere right to sue for damages, is free from liability of attachment in execution of a decree.
(d) Where the wages payable to domestic servant are sought to be attached?
As per Section 60(l)(h) the wages of labourers and domestic servants, whether payable in money or kind are free from liability of attachment in execution of decree.
(e) A decree for Rs. 300/- is sought to be executed by arrest and detention of the judgement-debtor in a civil person.
Section 58, clause (1A) was inserted by C.P.C. (Amend.) Act, 1976, which read “For removal of doubts, it is hereby declared that no order for detention of judgement-debtor in Civil prison in execution of a decree for the payment of money shall be made, where the’ total amount of the decree does not exceed five hundred Rupees only”.
Hence, execution of decree by arrest and detention does not arise where the amount of decree does not exceed Rs. 500/-.
(f) Salary under attachment for a continuous period of 24 months is sought to be re-attached for full satisfaction of the same decree.
As per Section 60(1)(i) :–Provision says “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.”
(g) A policy of life insurance having matured, the policy holder receives the money from the Life Insurance Corporation and deposits it in his bank account, which is sought to be attached ?
As per 60(1 )(kh) all moneys payable under a policy of insurance on the life of the judgement-debtor are exempt, but in this case the Policy is matured and the amount is deposited in bank account, hence, attachable. Section 60(1) also stipulated that money, bank notes are liable for attachment.