Attachment of
immovable property ( Land / Buildings and Houses) is a legal process of taking, apprehending, or
seizing the property, by virtue of any forms of judicial order to the
satisfaction of judgement or during the pendency of litigation.
Immovable properties are defined in Sec 3(26) of the General Clauses Act,
1897, and shall include land, and things attached to earth, or permanently
fastened to anything attached to earth. The transfer of Properties Act, 1882,
Sec 3 defines -“attached to the earth” means:-
(1) rooted in the earth, as in the case of trees and shrubs;
(2) imbedded in the earth, as in the case of walls or buildings;
or
(3) attached to what is so imbedded for the permanent beneficial
enjoyment of that to which it is attached.
Attachment of Immovable Properties as per Rule 54 of Order 21 of
the Code of Civil Procedure 1908, states:-
(1) Where the property is immovable, the attachment shall be
made by an Order prohibiting the judgment debtor from transferring or charging
the property in any way, and all persons from taking any benefit from such
transfer or charge.
(1) The Order shall also require the judgment debtor to attend
court on a specified date to take notice of the date to be fixed for settling
the terms of the proclamation of sale.
(2) The Order shall be proclaimed at some place on or adjacent
to such property by beat of drum or other customary mode, and a copy of the
Order shall be affixed on a conspicuous part of the property and then upon a
conspicuous part of the court house, and also, where the property is land
paying revenue to the government, in the office of the Collector of the
District in which the land is situate and, where the property is land situate
in village, also in the office of the Gram Panchayat, if any, having
jurisdiction over that village.)
This, however, is subjected to various High Court Amendments.
The Categories of
Properties which are exempted from attachment is provided under Civil Procedure
Code Section 60, with concerned State Amendments.
Sec :-60. Property liable to attachment and
sale in execution of decree.--
(1) The following properly 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:
Provided that the following particulars shall
not be liable to such attachment or sale, namely:--
(a) the necessary wearing-apparel, cooking
vessels, beds and bedding of the judgment-debtor, his wife and children,
and such personal ornaments as, in accordance with religious usage, cannot be
parted with by any woman;
(b) tools of artisans, and, where the
judgment-debtor is an agriculturist, his implements of husbandry and such
cattle and seed-grain as may, in the opinion of the Court, be necessary to
enable him to earn his livelihood as such, and such portion of
agricultural produce or of any class of agricultural produce as may have been'
declared to be free from liability under the provisions of the next following
section;
(c) houses and other buildings (with the
materials and the sites thereof and the land immediately appurtenant thereto
and necessary for their enjoyment) belonging to 2[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 [or of a local authority or of any
other employer], or payable out of any service family pension fund notified
in the Official Gazette by [the Central Government or the State
Government] in this behalf, and political pension;
[(h)] the wages of labourers and
domestic servants, whether payable in money or in kind [***];
[(i) salary to the extent
of [the first [ [one thousand rupees]] and two-thirds of
the remainder] [in execution of any decree other than a decree for
maintenance]:
[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;]]
[(ia) one-third of the salary in
execution of any decree for maintenance;]
[(j) the pay and allowances of persons
to whom the Air Force Act, 1950 (45 of 1950), or the Army
Act, 1950 (46 of1950), or the Navy
Act, 1957 (62 of 1957), applies;]
(k) all compulsory deposits and other sums in
or derived from any fund to which the Provident Funds Act, [1925]
(19 of1925), for the time being applies in so far as they are declared by
the said Act not to be liable to attachment;
[(ka) all deposits and other sums in or
derived from any fund to which the Public Provident Fund
Act, 1968 (23 of 1968), for the time being applies, in so
far as they are declared by the said Act as not to be liable to attachment;
(kb) all moneys payable under a policy of
insurance on the life of the judgment-debtor;
(kc) the interest of lessee of a residential
building to which the provisions of law for the time being in force relating to
control of rents and accommodation apply;]
[(l) any allowance forming
part of the emoluments of any [servant of the Government] or of any
servant of a railway company or local authority which the [appropriate
Government] may by notification in the Official Gazette declare to be exempt
from attachment, and any subsistence grant for allowance made
to [any such servant] while under suspension;]
(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 [any
Indian law] to be exempt from liability to attachment or sale in execution of a
decree; and
(p) where the judgment-debtor is a person
liable for the payment of land-revenue ; any movable property which, under any
law for the time being applicable to him, is exempt from sale for the
recovery of an arrears of such revenue.
Order
21 Rule 58 CPC –Attachment of mortgaged Property
A suit under O.21 Rule 58, attachment before
judgement, to release the property from attachment on the ground that property
is under attachment by a mortgagee , when the possession is not actual , the
objections under above Rule 58 cannot be maintainable.
The Hon’ble Supreme Court in Kabidi Venku Sah Vs. Sayed Abdul Hai and
another , 1984 AIR (SC)117, held that :-
On the basis of a simple mortgage executed in his
favour in
the year 1948, the appellant obtained a decree on
4-9-1967, brought the mortgaged property to
sale, purchased
it himself
on 24-7-1968 and got the sale confirmed by court
on 28-8-1968.
The first respondent who held
a promissory
note executed
in his favour by the owner
of the said
property in
1961, instituted a suit for recovery of the sum
on 24-9-1964
and got the property attached
before judgment
on the same
day and thereafter obtained a money decree on
30-3-1967, and filed an execution petition for
realising the
money due under the decree by bringing the
property to sale.
Thereupon the
appellant filed a claim petition
under O.21,
r. 58
C.P.C., for getting the
attachment raised. The claim
petition was
resisted by the first respondent inter alia on
the ground
that it was incompetent as the
appellant had
neither any
interest in the equity of redemption nor was he
in possession
of the property. The trail court
allowed the
claim petition holding
inter alia that what was attached on
24-9-1964 was
the entire property and not
the equity of
redemption alone. The Civil
Revision Petition filed by the
first respondent
against the order of the trial court was
allowed by
the High Court which held that
the appellant
having failed
to prove that he had
an interest in
the property on the date of the attachment and was in possession
of the property, either actual or constructive,
on that date
he was not entitled to have the attachment
raised.
Dismissing the appeal,
HELD:
The trial court erred in observing that
what was
attached before
judgment on 24-9-1964 was not the equity of redemption but the entire property. There could be no doubt
that on
24-9-1964 when the property was
attached before judgment
long after the mortgage dated 31-7-1948 and
two years before the suit was filed on the mortgage in 1966, the mortgagor
had the equity of redemption and that what could have
been attached in law on 24-9-1964 was the equity of redemption alone
and not the
entire interest in the property.
The property. The
appellant had no
doubt an interest in the property
as mortgagee, but he could not have been in possession of the property as he
was only a simple mortgagee. He was a
secured creditor as he had
a mortgage in his favour, and any
attachment effected after the date of the
mortgage and during its
subsistence could only be subject to that mortgage. Since he had no interest in the equity
of redemption on the date of attachment, he could not
have had any objection to that right
of the mortgagor being attached
by the first respondent. Therefore,
he wasnot a
person who could, in law,
file any claim
petition under O.
21; r. 58 objecting to the attachment
of the equity of redemption. [116 A; C-D; F-H]
The attaching creditor can
bring the property to sale only
subject to the mortgage as
long as it is subsisting.That
is to say, he could bring only the
mortgagor's equity of redemption to
sale if it had not
already been extinguished
by it sale in execution of any decree obtained on
that mortgage. But if the equity of redemption has already been sold
after the date of the
attachment, the attaching decree holder
could proceed only against the balance, if any, of the
sale price left after satisfying the mortgagee
decree-holder's claim under
the decree. The mortgagee's right is thus not
affected all. [117 B-C]
Further, in 2007 (4) MLJ 1252 (D.Saraswathy and
others vs. Krishnasamy and others), the scope of Section 47 came up for
consideration before this Court and this Court reiterated the principle that
the Execution Court cannot go behind the decree and it is to execute the decree
as it stands.
Finally in 2006 (4) SCC 416 (Manish Mohan Sharma and others vs. Ram Bahadur Thakur
Limited and others), the Hon'ble Supreme Court held that an
Executing Court cannot go behind the decree unless the decree is a nullity for
a lack of inherent jurisdiction and the lack of jurisdiction is patent on the
face of the decree.
Immovable Property Attachments under
Criminal Procedural Code 1973.
Criminal
Procedural Code Sec 87 and 88 provide for the attachment and sale of the
property of any accused person or witness whose presence is required by a
criminal court as a last remedy for compelling his attendance. The procedure
laid down must be adhered; else, sale will be liable to be set aside. Schedule
5 of Cr. P.C prescribes the form for proclamation, attachment e.t.c.
However,
Police can attach only the movable property as per Sec 102 Cr.PC. In this
regard, a bench of the Bombay High Court on Monday gave a split judgment on
attachment of property of the accused in criminal cases, with the majority
observing that police cannot attach immovable property under Section 102 of the
CrPC. The term property, which police can attach, is only is 'movable'.
The Customs (Attachment of property of defaulters
for recovery of Government dues) Rules, 1995.
The rules as to:-
Private alienation to
be void in certain cases.
(a) Where a notice has been served on a
defaulter under rule 4 , the defaulter or his representative in interest shall
not be competent to mortgage, charge, lease or otherwise deal with any property
belonging to him except with the written permission of the Proper Officer.
(b) Where an attachment has been made
under these rules, any private transfer or delivery of
the property attached or any debt, divided
or other moneys contrary to such attachment, shall be void as against all
claims enforceable under the attachment.
(c) Where the property to be attached consists of the share or
interest of the defaulter in property belonging to him and another as
co-owners, the attachment shall be made by a notice to the defaulter
prohibiting him from transferring the share or interest or charging it in any
way.
Similarly, the
concerned State rules as to civil rules of practice provides the rules
applicable to alienation after service of attachment notice, in cases of
Attachment of Immovable Properties as per Rule 54 of Order 21 of the Code of
Civil Procedure 1908.
