Thursday, April 20, 2017

Attachment of Immovable Properties ( Land / Buildings and Houses) in India

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]


https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjUvc0LZZjRRsImTchvJw9UGIVUFGgrqc-OUtCqpQAQntJH-OJ06zyMgFRdpByGN32ZS-lfx5IHpI0amEIg1YNhV0DNwVcHRw7HgbiqMHiOOOLakYIhPiUO7t4e9yiK808Bz6RwRHIMvgpB/s1600/law+emblem-1.jpgFurther,  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.


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