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Attachment of Immovable Properties in India

Attachment of immovable property 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.

 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.