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Attachment of Property under Execution Proceeding in India

Introduction:

Each and every civil suit has three stages such as:-

  1. Institution of the suit,
  2. Adjudication of suit,
  3. Implementation of the litigation.

The implementation of the legal action or litigation is to put the consequences of the adjudication into action and so, this stage is known as execution. This process gives effect to the judgement of the court. Section 38 of CPC provides that “ who can execute the decree”. Section 37 of the code explains the expression “ court which passed a decree”.

Section 37 covers the following courts :-

  1. The court which actually passed the decree at the first instance.
  2. In case of appellate decrees, the court of first instance.
  3. Where the court of first instance does not exist, the court which has jurisdiction try the suit at the time of execution.
  4. Where the court of first instance has no jurisdiction then the court which has jurisdiction try the suit.

Attachment of property:

Attachment is a legal process where the competent court permits the creditor to take away the property of the debtor or orders to transfer the property of the debtor to the creditor at the request of the creditor and also the property can be sold for the benefit of the creditor. This is done just to recover the debt of the creditor from the debtor. The property of the judgement debtor in which he has profits or has rights or has disposing power for his benefits, is liable to attachment and also sale in execution of a decree. CPC of 1908 provides sections 60 to 64 and rules 41 to 57 of order 21 which deals with the matter of attachment of property. Section 60 of CPC, 1908 deals with the property that can be attached and cannot be attached. Section 60 (1) of the code deals with the property which are exempt from sale and attachment.

Some procedures of Attachment:

  1. Attachment of immovable property begins with issuing a prohibitory order to the judgement debtor and to the public generally and this prohibitory order bars the debtor from transferring the property.
  2. Beating of drum or customary practice is done in this process for the proclamation of the order.
  3. When movable property is to be attached, the attaching officer has power to seize the property and also has right or power to keep the property in his custody. There are few other modes or procedures of attachment.

Removal of attachment:

  1. All costs, charges, decreed sum and all expenses of the attachment of the property  are given to the court.
  2. Decree is satisfied by the court.
  3. The decree is set aside or reversed.

Determination of attachment:

Determination of attachment is important under the topic of attachment of property. It is done as to the status of the attachment.

Private alienation of property after attachment:-

It is said that private alienation of property after attachment is void. In simple words, it is not applicable. If the debtor transfers his property after attachment then that transfer is considered as void under section 64 of the code.

Conclusion:

The above article clearly explains the attachment of property under execution proceeding in India. Attachment is a legal process where the competent court orders to transfer the property of the debtor to the creditor at the request of the creditor and also the property can be sold for the benefit of the creditor. This is done just to recover the debt of the creditor from the debtor. CPC of 1908 provides sections 60 to 64 and rules 41 to 57 of order 21 which deals with the matter of attachment of property.

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