Code of Civil Procedure, 1908 (CPC)
Claims and Objections to Attachment: Order XXI Rules 58 and 59
An attachment in execution is levied on property the decree-holder says belongs to the judgment-debtor. Often somebody else says it belongs to him. Before 1976 that dispute was investigated summarily and the loser was left to bring a separate suit under the old Rule 63. The Amendment Act of 1976 replaced the whole scheme: Rule 58 now requires the executing court to decide all questions, including questions of right, title or interest, and its order has the force of a decree. These notes set out the current scheme and the old one it replaced.
The claim, what bars it, and the four orders the court may make
1. Rule 58(1): The Claim and the Two Bars
§ Order XXI Rule 58(1) (in substance) 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 proceed to 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 the 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. |
§ Three points on the opening words • The ground is a defined one: that the property is not liable to attachment. A person who accepts that it is liable but complains of the manner of the attachment is not within the rule. • The first bar protects the auction purchaser. Once the property has been sold, a claim cannot be entertained, because a purchaser who has bought at a court sale should not have his title unsettled by a claim that could have been made earlier. • The second bar protects the process. A claim designedly or unnecessarily delayed is not entertained, which discourages the practice of holding back an objection until the sale is imminent. |
2. Rule 58(2): Everything Is Decided Here
§ Order XXI Rule 58(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule 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. |
i. This is the heart of the 1976 reform. The executing court no longer holds a summary investigation and leaves title to a later suit; it decides title itself.
ii. The bar on a separate suit is express, and it covers all questions relevant to the adjudication, not merely the narrow question of liability to attachment.
iii. It is the same technique as Order XXI Rule 101, which requires all questions, including those of right, title or interest, arising on an application about resistance to delivery of possession, to be decided in that proceeding.
3. Rule 58(3) and (4): The Orders and Their Force
Clause | The order the Court may make |
|---|---|
(a) | ALLOW the claim or objection and RELEASE the property from attachment either wholly or to such extent as it thinks fit |
(b) | DISALLOW the claim or objection |
(c) | CONTINUE the attachment subject to any mortgage, charge or other interest in favour of any person |
(d) | Pass SUCH ORDER as in the circumstances of the case it deems fit |
§ Rule 58(4): the order is a decree in effect 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. So the remedy is an appeal, on the ordinary footing and within the ordinary period, and not a fresh suit. And the order binds. Having the force of a decree, it operates between the parties on the questions it decided, including questions of title. |
4. Rule 58(5) and Rule 59
§ The saving, and the stay Rule 58(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 the order is made may institute a suit to establish the right he claims to the property; but, subject to the result of that suit, the order refusing to entertain the claim shall be conclusive. The logic. Where the court has adjudicated, the order is a decree and the remedy is an appeal. Where it has refused to adjudicate because the property was already sold or the claim was delayed, there has been no decision, and a suit is preserved. Rule 59: stay of sale. Where, before the claim was preferred or the objection made, the property attached had already been advertised for sale, the Court ordering the sale may postpone it pending the adjudication of the claim or objection, on such terms as to security or otherwise as it thinks fit. |
5. The Scheme Before 1976
Basis | Before 1976 | After 1976 |
|---|---|---|
The inquiry | A SUMMARY investigation of possession under the old Rule 58 | A full adjudication of all questions, including right, title and interest: Rule 58(2) |
Questions of title | Left to a separate suit | Determined by the executing court, and NOT by a separate suit |
The order | Not a decree; conclusive only until a suit was brought | Has the same force as a DECREE, and is appealable as such: Rule 58(4) |
The remedy of the loser | A SUIT under the old Rule 63, within one year | An APPEAL, as from a decree |
Rules 60 to 63 | Provided for release, disallowance, continuance subject to an encumbrance, and the saving of suits | OMITTED; their substance is now in Rule 58(3) and (4) |
The change matters for reading older material. A textbook or judgment that speaks of a Rule 63 suit is describing the position before 1976. Under the present scheme the executing court decides title in the execution proceeding itself, and the only suit preserved is the narrow one under Rule 58(5), where the court refused to entertain the claim at all.
6. Landmark Points
- Rule 58(1). The court adjudicates a claim that the attached property is not liable to attachment, except where the property has already been sold or the claim was designedly or unnecessarily delayed.
- Rule 58(2). All questions, including questions of right, title or interest, are determined by the court dealing with the claim and not by a separate suit.
- Rule 58(3). Four possible orders: allow and release, disallow, continue subject to an encumbrance, or such other order as the court deems fit.
- Rule 58(4). The order has the same force, and is subject to the same conditions as to appeal, as if it were a decree.
- Rule 58(5). Where the court refuses to entertain the claim under the proviso, a suit is preserved, and subject to it the refusal is conclusive.
- Rule 59. The sale may be postponed pending the adjudication where the property had already been advertised.
- Rules 60 to 63 stand omitted, and the old Rule 63 suit no longer exists.
7. Frequently Asked Questions
Who may object to an attachment?
Any person who claims that the property attached in execution is not liable to that attachment, typically a third party asserting that the property is his and not the judgment-debtor's.
When will the court refuse to entertain the claim?
Under the proviso to Rule 58(1): where the property attached has already been sold before the claim was preferred, or where the court considers that the claim or objection was designedly or unnecessarily delayed.
Can questions of title be decided in the execution proceeding?
Yes, and they must be. Rule 58(2) requires all questions, including those relating to right, title or interest in the attached property, to be determined by the court dealing with the claim, and not by a separate suit.
What is the remedy against an order on a claim?
An appeal. Rule 58(4) gives the order the same force, and subjects it to the same conditions as to appeal or otherwise, as if it were a decree, so the loser appeals rather than filing a suit.
Is a separate suit ever available?
Only in the narrow case in Rule 58(5): where the court refuses to entertain the claim under the proviso. The party against whom that order is made may institute a suit to establish his right, and subject to that suit the refusal is conclusive.
What happened to the old Rule 63 suit?
It was abolished. The Amendment Act of 1976 substituted the present Rules 58 and 59 and omitted Rules 60 to 63, replacing the summary inquiry followed by a suit with a full adjudication whose order has the force of a decree.
Can the sale be stopped while the claim is decided?
Yes. Under Rule 59, where the property had already been advertised for sale before the claim was preferred, the court ordering the sale may postpone it pending the adjudication, on such terms as to security or otherwise as it thinks fit.
8. Related Topics in This CPC Series
- Attachment in Execution: Sections 60 to 64 and Order XXI
- Order XXI Rules 97 to 103: Resistance to Delivery of Possession
- Questions Determined by the Executing Court under Section 47
- Sale of Attached Property in Execution