Attachment of Property

A civil suit is the inaction of one party, called a defendant, who causes the wrongful act to another, called a plaintiff. Harm is compensated by giving some kind of compensation to the aggrieved party. What differentiates the civil suit with that of the criminal complaint is that a civil suit is to compensate for the harm caused to the aggrieved, unlike the latter which emphasizes punishment for the wrongdoer. There are three stages of every civil suit:

  1. Institution of a suit,
  2. Adjudication of a suit and
  3. Implementation of a suit.

The orders passed by the Court are executed at the stage of the implementation of a suit. The execution can be done by the Court where the decree was passed or by any other Court to which the decree is sent for execution. Section 51 of the Code of Civil Procedure describes various ways in which a decree can be executed. They are:

(a) By delivery of any property specifically decreed;

(b) By attachment and sale or by the sale without attachment of any property;

(c) By arrest and detention in prison for such period not exceeding the period;

(d) In such a manner as the nature of the relief granted may require.

In a proceeding for the arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the Judgment Debtor has sufficient means to satisfy the decree, the Court cannot refuse to order the arrest, on the ground that there is an alternative remedy of attachment available to the Decree Holder for the realization of the amount mentioned in the award. When the defendant fails to repay the amount to the decree-holder, the Court can pass an order of the attachment of the property of the Judgment Debtor. The order can be passed against both the movable and immovable property. However, not all properties can be attached.

The Andhra Pradesh High Court in the case of V. Dharmavenamma vs. C.Subrahmanyam Mandadi held that neither the Court nor the Judgment Debtor has the authority to force or persuade the Decree Holder as to what mode of execution is to be performed.

In the process of attachment, the Court at the request of the decree-holder designates specific property owned by the debtor to be transferred to the creditor or sold for the benefit of the creditor. Sections 60 to 64 and Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of property.

Order XXI Rules 55-38 explains the circumstances under which the attachment is determined under the Code. These are:

  1. Where the amount is paid or is satisfied.
  2. Where the decree is reversed or set aside.
  3. Where the Court highlights an objection against the attachment and makes an order for releasing the property.
  4. Where after the attachment the application for execution is dismissed.
  5. Where the judgment holder withdraws the attachment.
  6. Where the decree-holder fails to do what he was required to do under the decree.
  7. Where the suit of the plaintiff is dismissed.
  8. Where the attachment is ordered before the judgment and the defendant furnishes necessary security.
  9. Where there is an agreement or compromise made between the parties.
  10. Where the creditor abandons the attachment.