§ Section 60(1), CPC 1908 (main provision)

The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-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 judgment-debtor or by another person in trust for him or on his behalf.

§ The three tests for attachability

Property is attachable only if all three are satisfied:

• It must be saleable. Property that cannot be sold cannot be attached for sale, which excludes personal rights and privileges not transferable in law.

• It must belong to the judgment-debtor, or be subject to his disposing power. The section reaches property held in another's name in trust for him or on his behalf, so a benami arrangement does not protect it; but it does not reach property genuinely belonging to a third party.

• It must not fall within the exemptions. The proviso to Section 60(1) exempts a list of property, and other statutes add their own exemptions.

Necessary wearing apparel, cooking vessels, beds and bedding, and personal ornaments

Of the judgment-debtor, his wife and children, and such ornaments as, in accordance with religious usage, cannot be parted with by any woman

(a)

Tools of artisans and implements of an agriculturist

Tools of artisans, and where the judgment-debtor is an agriculturist, his implements of husbandry, and such cattle and seed-grain as may be necessary to enable him to earn his livelihood

(b)

Houses and buildings

Belonging to an agriculturist, a labourer or a domestic servant and occupied by him, with the materials and sites and the land immediately appurtenant and necessary for their enjoyment

(c)

Books of account

Wholly exempt

(d)

A mere right to sue for damages, and a right of personal service

Wholly exempt, being personal and not transferable

(e) and (f)

Stipends and gratuities allowed to pensioners of the Government, and political pensions

Wholly exempt

(g)

Wages of labourers and domestic servants

Wholly exempt, whether payable in money or in kind

(h)

Salary

The first one thousand rupees and two-thirds of the remainder; but where the decree is for maintenance, one-third of the salary is attachable

(i) with the provisos

Compulsory deposits and sums in provident funds

To which the Provident Funds Act, 1925 applies, and other sums declared exempt by that Act

(k)

A right to future maintenance, and an expectancy of succession

Wholly exempt; an expectancy is not transferable and cannot be attached

(n) and (m)

§ Two points examiners test on exemptions

They cannot be waived. By Section 60(1), second proviso, any agreement by which a judgment-debtor purports to waive the benefit of an exemption is void. The exemptions protect the debtor's subsistence and livelihood, and a creditor cannot contract out of them.

Salary and maintenance decrees. The ordinary protection of the first one thousand rupees and two-thirds of the remainder is reduced for a maintenance decree, where one-third of the salary may be attached, since the competing claim is itself for subsistence.

Section 60(2) adds that nothing in clauses (g), (h), (i), (j), (l) or (o) entitles the judgment-debtor to an exemption for any of the property mentioned once it has been received by him: the protection attaches to the fund in the hands of the payer, not to money once paid over.

Movable property in the judgment-debtor's possession

Order XXI Rule 43

By actual seizure, the officer keeping the property in his custody or on the premises, and being responsible for its due custody

Agricultural produce

Order XXI Rules 44 and 45

By affixing a copy of the warrant on the land where the crop is growing or on the threshing floor, and on the judgment-debtor's house

Movable property not in the judgment-debtor's possession

Order XXI Rule 46

By a written order prohibiting the person in possession from delivering it to the judgment-debtor

Debts, shares and other property not in possession

Order XXI Rule 46

By a prohibitory order restraining the creditor from recovering the debt and the debtor from paying it, and restraining dealings with the share

A debt due to the judgment-debtor: garnishee

Order XXI Rules 46A to 46-I

The garnishee is called on to show cause why he should not pay the debt to the decree-holder; the court adjudicates any dispute he raises

Immovable property

Order XXI Rule 54

By an order prohibiting the judgment-debtor from transferring or charging the property, proclaimed and affixed on the property and at the court house

A share in movable property

Order XXI Rule 47

By notice to the judgment-debtor prohibiting him from transferring or charging the share

Salary of a public officer or employee

Order XXI Rule 48 and 48A

By an order to the disbursing officer to withhold and remit the attachable portion to the court

Partnership property

Order XXI Rule 49

The property of a partnership shall not be attached in execution of a decree against a partner otherwise than by an order charging his interest in the partnership property and profits

Negotiable instruments

Order XXI Rule 51

By actual seizure of the instrument, which is brought into court and held subject to its further orders

§ Garnishee proceedings in outline

A garnishee is a person who owes a debt to the judgment-debtor. Where that debt is attached, the court may under Order XXI Rule 46A issue a notice calling on the garnishee to pay the debt into court or to appear and show cause why he should not.

If the garnishee does not dispute the debt, or does not appear, the court may order him to pay the amount into court, and that order is enforceable as a decree against him: Rule 46B.

If he disputes liability, the court may order that the question be tried as if it were an issue in a suit, and determines it: Rule 46C. A payment made under the order discharges the garnishee as against the judgment-debtor to that extent: Rule 46E.

The value of the device is that it reaches money owed to the judgment-debtor by banks, tenants, employers and trade debtors, which is often the only asset that can be found.

§ Section 63, CPC 1908

(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 realise such property and shall determine any claim thereto and 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.

§ Section 64, CPC 1908

(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein, and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

(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.

Explanation. For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

§ What Section 64 does and does not do

Four propositions:

• It does not make the transfer void generally. The transfer is void only as against claims enforceable under the attachment; as between the transferor and transferee it remains effective, and the transferee takes subject to the attachment.

• It protects the decree-holder, not the property. The purpose is to prevent a judgment-debtor from defeating execution by disposing of attached property; the attachment does not create a charge or a title in the decree-holder.

• It covers payments as well as transfers. A payment to the judgment-debtor of a debt, dividend or other money contrary to the attachment is equally void as against such claims, which is what makes garnishee attachment effective.

• Sub-section (2) is a real protection. A transfer made in pursuance of a contract entered into and registered before the attachment is outside the section, so a purchaser under a registered prior agreement is not defeated by a later attachment.

§ Order XXI Rule 58 (in substance)

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall adjudicate upon the claim or objection in accordance with the provisions herein contained: provided that no such claim or objection shall be entertained — (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions, including questions relating to right, title or interest in the property attached, arising between the parties to a proceeding on such claim or objection and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims.