Attachment and Sale under the Code of Civil Procedure

Print this Attachment and Sale Code of Civil Procedure Table of Cases 1. Desh Bandhu v. Anand, (1994) 1 SCC 131. 2. Ghanshyam Das v. Anant Kumar, AIR 1991 SC 2251. 3. Jagdish v. Mangal Pandey, AIR 1986 All 182. 4. Lakshmibai v. Santappa, AIR 1964 Bom 342. 1. Manilal Mohanlal v. Sayed Ahmed, AIR 1954 SC 349. 2. Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693. 1. Muthuarman Elementary School Committee v. Nobel Raj, J., AIR 1975 Mad 19. 2. Narayanappa v. Akkulappa, AIR 1965 A.P. 215. 3. Rangoon Municipality v. Ram Behari, AIR 1939 Rang 432. 1. State of Punjab v. Dina Nath, (1984) 1 SCC 137. 2. Subbarao v. Official Receiver, AIR 1965 A.P. 52. 3. Teeka and others v. State of U.P., AIR 1961 SC 803. 1.0. Introduction The passing of a decree by a competent court conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, thus creating substantive rights in favour of the decree-holder. However, lately it has been seen that instead of following the terms and conditions of the decree, judgment-debtors have been placing a number of obstacles in the way of a decree-holder, who seeks to realize the fruits of the decree passed in his favour by a competent court. In fact, such a trend has become so prevalent that it has forced the Supreme Court to opine that the difficulties of a litigant begin when he has obtained a decree[1]. Conscious of the significance and importance of giving effect to the decree and orders passed by competent courts, the Code of Civil Procedure provides for elaborate rules for the execution of decrees. In an attempt to ensure that a decree-holder is able to realize the fruits of the decree, the Code of Civil Procedure gives a number of modes for the execution of decrees. One of these modes of execution of decrees is the process of attachment and sale of the properties of the judgment-debtor. Since, a judgment-creditor does not by virtue of his judgment, get a right to the property of the judgment-debtor, his remedy is not by way of a suit but by attachment and sale in execution. While through the process of attachment the court informs the world that the property so ordered to be attached is in its view and no existing rights and liabilities should be altered; through the process of sale of the properties of the judgment-debtor, the Court diverts the money so collected to the decree-holder in satisfaction of his claim. However, by its very nature property may be of different types. Therefore, a judgment-debtor may possess either movable or immovable properties, or both. Thus, keeping in regard the differing characteristics of these two types of properties, the Code of Civil Procedure prescribes different procedures for the attachment and sale of movable and immovable properties. It is the endeavour of this project to examine the process of attachment and sale of movable and immovable property in a money decree and to intellectualize the reasons for the different process for the attachment and sale of movable and immovable property.

2.0. Research Methodology 2.1. Aims and Objectives The aim and objective of this project is to make a detailed study of the process of attachment and sale of movable and immovable properties in a money decree. In addition, this project also endeavors to intellectualize the reasons for the different procedures for the attachment and sale of movable and immovable property. 2.2. Scope The scope of this project is limited to the study of the various provisions regarding attachment and sale of property in execution of decrees provided for in the Code of Civil Procedure. 2.3. Research Questions

 What do you mean by movable and immovable property? What are the various procedures for the attachment of judgment-debtors property in execution of money decrees? What are the various procedures for the sale of judgment-debtors property in execution of money decrees? What is the rationale for the provision of different procedures for attachment and sale of movable and immovable properties in execution of money decrees? 2.4. Style of Writing Both analytical and descriptive styles of writing have been used in this project. While an attempt has been made to analyze the reasons for different procedures for attachment and sale of movable

and immovable properties in execution proceedings; the process of attachment and sale itself is mainly descriptive.
2.5. Sources of Data Both primary and secondary sources of data in the form of books and case law have been used in this project. 2.6. Mode of Citation A uniform mode of citation has been used throughout this project. 3.0. Movable and Immovable Property 3.1. General Under all legal systems, amongst material things, an important distinction is drawn between movable and immovable properties. Though in some cases it is easy to classify property as moveable or immovable, for instance land is clearly an immovable property while car is clearly a movable property, in other cases it sometimes becomes difficult to classify the same. Thus, it becomes imperative to understand the conceptual difference between these two classes of objects[2] as they are governed by different rules in all the legal systems of the world. 3.2. Jurisprudential Analysis Jurisprudentially, among material things, property can be described as movable or immovable property. In the 12th Edition of Salmond on Jurisprudence it has been stated that: Considered in its legal aspects, an immovable property, that is to say a piece of land, includes the following elements:1) A determined portion of the earths surface. 2) The ground beneath the surface down to the centre of the world. All the pieces of land in England meet together in one terminable point at the earths centre. 3) Possibly the column of space above the surface ad infinitum.[3] 4) All objects which are on or under the surface in its natural state; for example, minerals and natural vegetation. All these are part of land, even though they are in no way physically attached to it. Stones lying loose upon the surface are in the same category as the stone in a quarry. 5) Lastly, all objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of land, and lose their identity as separate movable or chattels; for example; building walls and fences. Provided that the requisite intent of permanent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundations is part of the land on which it stands. Conversely, physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floor or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel as money in its owners pockets.[4] In contrast, in its legal aspects, a movable property has been described as any material thing, which is not immovable.

It is also pertinent to note that under the law the distinction between movable and immovable is not restricted to material things alone and even rights have been classified as movable and immovable. The general rule is that a right has in this respect the same quality as its subject matter.[5] Thus, all rights over immovable things are themselves classified as immovable and in the same manner all rights over movable property are classified as movable. 3.3. Movable and Immovable Properties under Indian Laws In consonance with the jurisprudential understanding, numbers of laws in India have attempted to define Immovable Properties. Also in keeping with Salmonds analysis, under all the below mentioned enactments, any property, which is not immovable, is treated as Movable Property. Section 3 (26) of the General Clauses Act, 1897 defines an immovable property as: Immovable Property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. However, this is not an exhaustive definition and in fact, Section 2 (6) of the Registration Act, 1908states that: Immovable property includes land, building, hereditary allowances, rights to way, light, ferries, fisheries or any other benefit to arise out of land, and things attached to earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. In contrast, Section 3 of the Transfer of Property Act, 1882, though not attempting to define immovable property states that: Immovable property does not include standing timber, growing crops or grass. The practical significance of the distinction between movable and immovable property was clearly brought out by the Division Bench of the Allahabad High Court in the case of Jagdish v. Mangal Pandey[6] wherein in relation to trees on land it was stated that: Anything attached to the certain would normally be treated as immovable property and a tree which is attached to the earth and seeks its nourishment and sustenance from the soil in which it stands will be deemed to be attached to the earth with the only distinction that if it the tree of the kind which is usually used as timber and is of sufficient size so as it can be used as such and is intended to be severed from the soil reasonably thereafter, it may not be treated as immovable property. 4.0. Attachment 4.1. General In Ghanshyam Das v. Anant Kumar,[7] while dealing with the provisions of the Code of Civil Procedure relating to the execution of decrees and orders, the Supreme Court had stated that the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with the question of execution of decrees. More specifically, Section 51[8] of the Code of Civil Procedure enumerates in general terms the various modes of execution of a decree, one amongst which is the attachment of the property of the judgment-debtor. 4.2. Object of Attachment Execution of a decree takes place by attachment of property of judgment-debtor.[9] In fact, the attachment of the judgment-debtors property is the preliminary step to the sale of property in execution proceedings and the underlying object of attachment of the property is to give notice to the judgment-debtor not to alienate his property to anyone and also to the general public not to purchase or to deal with the property of the judgment-debtor attached in execution proceedings.[10] 4.3. Effect of Attachment Section 64[11] of the Code of Civil Procedure makes it manifest that attachment has merely the effect of preventing private alienation to the prejudice of claims under attachment. It conveys no title, charge, lien or priority in favour of the attaching creditor.[12] In fact, in Subbarao v. Official

Receiver[13] the Andhra Pradesh High Court while dealing with the involuntary sale of the judgmentdebtors flat under a decree of a court, stated that an order of attachment does not prevent a transfer by operation of law and nor does it create any interest or lien. 4.4. Property which can be Attached Section 60[14] of the Code of Civil Procedure enumerates the properties, which are liable to attachment in execution of a decree. It states that all saleable property (movable or immovable) belonging to the judgment-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit may be attached and sold in execution of a decree against him. More specifically, in State of Punjab v. Dina Nath,[15] wherein the right to officiate at funeral ceremonies was held to be not saleable, it was stated by the Supreme Court that Section 60 of the Code of Civil Procedure is not exhaustive and specific non-inclusion of a particular species of property under Section 60 is therefore, not of any consequence if it is saleable[16] otherwise. However, regard must be had to the proviso to sub-section (1) of Section 60, which enumerates certain properties such as necessary wearing apparel, cooking vessels, beddings, tools of artisans, implements of husbandry, houses of agriculturalists, wages, salaries, pensions and gratuities, compulsory deposits, right to future maintenance etc. and declares that the properties specified therein are exempt from attachment and sale in the execution of a decree. In fact, Section 60 and the Proviso to Section 60 of the Code of Civil Procedure came in for consideration in the case of Muthuarman Elementary School Committee v. Nobel Raj, J.[17] In the instant case the grant relating to the elementary school had been earmarked for a specific purpose of maintenance of the building. While dealing with the objection to the attachment of such a grant the Madras High Court stated that: Assuming that the payment of rent is not part of maintenance of the school building, the Court fails to see how the said rule (Rule k-c of the proviso to Cl 1 of Section 60) can be invoked against the attachment of money. The rules framed by the Madras Elementary Education Act are not statutory rules. That apart there is nothing in Section 60, Civil Procedure Code itself to debar the decree-holder from attaching the grant, provided the money in the hands of the Government can be said to belong to the judgment-debtors. In this connection, the fact is admittedly the Government has already sanctioned the grant and the bill for the amount in question is said to have already been passed. Once a bill has been passed the grant would be similar to salary payable to a servant. Salary is also attachable as money under Section 60, Civil Procedure Code, subject to clauses (i) and (i-a) of the proviso to the said section. Also, there is no dispute that even salary payable in future is attachable subject to the above said clauses of the proviso. 4.5. Attachment of Movable Property The attachable property belonging to the judgment-debtor may be either movable or immovable in nature. Rules Nos. 43 to 53 of Order 21 of the Code of Civil Procedure lay down the different ways in which the movable property belonging to the judgment debtor is to be attached keeping in regard the nature of the specific movable property sought to be attached. 4.5.1. Attachment Of Movable Property (Other Than Agricultural Produce) In Possession Of The Judgment-Debtor Rule No. 43[18] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of all movable property, other than agricultural produce and property not in the possession of the judgmentdebtor, for both of which provision is made in Rules 44 to 46 of Order 21 of the Code of Civil Procedure.[19] Under Order 21, Rule 43, the attachment is legally effected only by actual seizure. Significantly, inTeeka and others v. State of U.P.,[20] wherein the judgment-debtors had forcibly entered the house of the decree-holder with intent to remove the attached cattle, the Supreme Court while elaborating on the phrase actual seizure stated that unlike a prohibitory order under Rule 46, attachment by

actual seizure involves a change of possession from the judgment-debtor to the court and that in case the property is kept in the custody of the decree-holder, the decree-holders custody is not in his capacity as a decree holder but only as a bailee of the sapurdar. Significantly, keeping in view the varied nature of the movable properties that may be attached under this rule the Proviso to Order 21, Rule 43 of the Code of Civil Procedure provides that when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once. 4.5.2. Attachment of Agricultural Produce Rule No. 44[21] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of agricultural produce. While Section 2 (13) of the Code of Civil Procedure provides that movable property includes growing crops, the term agricultural produce as used in the Code of Civil Procedure is confined to growing crop standing on the land on which it has grown or cut crop lying on the threshing floor or fodder stack. Elaborating on this point, in Rangoon Municipality v. Ram Behari, [22] wherein an objection was raised against the attachment of the grains belonging to the judgmentdebtor, the Court held that once the grain is separated from the chaff it ceases to be agricultural produce and there is no protection against its attachment and the grain as well as the straw both can be attached. Unlike other movable property agricultural produce of either description cannot be attached by actualseizure as provided in Order 21, Rule 43 of the Code of Civil Procedure. The custodia legis in the case of agricultural produce on attachment is only symbolic and is not validly created unless the rules of affixture herein provided are strictly complied with.[23] The reason is that no property can be declared to be attached unless, first, the order for attachment has been issued, and secondly, in execution of that order the other things prescribed by the rules in the Code have been done.[24] 4.5.3. Attachment Of Debt, Share And Other Property Not In Possession Of JudgmentDebtor Rule No. 46[25] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of debt, share and other movable property not in the possession of the judgment-debtor. Under Order 21, Rule 46 of the Civil Procedure Code the attachment of debts (other than negotiable instruments), shares in a corporation or other movable property not in the possession of the judgmentdebtor is legally effected by a prohibitory order, as contradistinguished from the requirement of actual seizure under Order 21, Rule 43. 4.5.4. Attachment Of Judgment-Debtors Share Or Interest In Movable Property Of CoOwners Rule No. 47[26] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of judgment-debtors share or interest in movable property of co-owners. Under Order 21, Rule 47 of the Civil Procedure Code the attachment of judgment-debtors share or interest in movable property of co-owners is legally effected by a prohibitory order. This is essentially because a share or interest in movable property is incapable of actual seizure and the attachment by a prohibitory order is the only proper course where such share or interest is to be proceeded against. [27] 4.5.5. Attachment of Negotiable Instruments Rule No. 51[28] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of negotiable instruments, which are neither deposited in the court nor in the custody of a public officer. Under Order 21, Rule 51 of the Civil Procedure Code the attachment of negotiable instruments, which are neither deposited in the court nor in the custody of a public officer, is legally effected by actual seizure. As regards negotiable instruments it does not matter whether the negotiable instrument is in possession of the judgment-debtor or not. Furthermore, the actual seizure of the negotiable instrument is necessary as there is always a danger that third parties may bona

fide become possessed of the negotiable instrument, and if a prohibitory order is held to be a valid attachment, they would be prejudiced by such an order of which they may know nothing.[29] 4.5.6. Attachment of Property in Custody of Court or Public Officer Rule No. 52[30] of Order 21 of the Code of Civil Procedure deals with the mode of attachment of judgment-debtors property in possession of another court or a public officer. Under Order 21, Rule 52 of the Civil Procedure Code the attachment of judgment-debtors property in possession of another court or a public officer is legally effected by issuing a notice to the court or public officer having the custody of the property, to hold the property subject to the orders of the Court issuing the notice. 4.5.7. Attachment of Salary or Allowance of a Public Servant or a Private Employee Rules No. 48 and 48-A of Order 21 of the Code of Civil Procedure deal with the mode of attachment of salary of the judgment-debtor. Under Order 21, Rules 48 and 48-A of the Civil Procedure Code the attachment of judgment-debtors salary or allowance is legally effected by issuing a prohibitory notice to the dispersing officer. However, it is pertinent to mention here that if such prohibitory notice is not served to the dispersing officer, the order of attachment will have no effect. Furthermore, the territorial jurisdiction is not considered in this case, and wherever the judgment-debtor is working his salary can be attached.[31] 4.6. Time of Attachment of Movable Property Section 62 of the Code of Civil Procedure provides that an attachment of movable property in a dwelling house cannot be made by entering the house after sunset and before sunrise. 4.7. Attachment of Immovable Property The attachable property belonging to the judgment-debtor may also be immovable in nature. Rule No. 54[32] of Order 21 of the Code of Civil Procedure lays down the directions as to the mode of attachment of immovable property, which are mandatory in nature and not merely directory.[33] Under Rule 54 of Order 21 of the Code of Civil Procedure the attachment of immovable property is legally effected by the issuance of an order by the Court 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. Such an order is to 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. Also, where the property to be attached is a land paying revenue to the Government, a copy of the order is to be affixed in the office of the Collector of the District in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. 4.8. Various Modes of Attachment of Property

Type of Property
Movable Property (other than agricultural produce) in possession of the judgment debtor Movable Property not in

Mode of Attachment
By actual seizure thereof. But if such property is subject to speedy and natural decay, to the expense of keeping it is likely to exceed its value, it may be sold. By an order prohibiting the person in

possession of the judgment debtor Negotiable Instrument neither deposited in a court nor in the custody of a public officer Debt not secured by a negotiable instrument Share in the capital of a corporation

possession thereof from giving it to the judgment debtor. By actual seizure and bringing it to Court. By an order prohibiting the creditor from recovering the debt and the debtor from paying the debt. By an order prohibiting the person in whose name the share stands from transferring it or receiving dividend thereon. By a notice to the judgment debtor prohibiting him from transferring or charging it. By an order that the amount shall (subject to the provisions of Section 60), be withheld from such salary or allowance either in one payment or by monthly installments. By making an order (a) charging the interest of the partner in the partnership property (b) appointing a receiver of the share of the partner in the profits (c) directing accounts and inquiries

Share or interest in movable property belonging to the judgment debtor and another as co-owner Salary or allowance of a public servant or a private employee

Partnership Property

(d) ordering sale of such interest. Property in custody of court or public officer By notice to such court or officer, requesting that such property, and any interest or dividend thereon, may be held subject to the order of the court. By (i) affixing a copy of the warrant (a) in case of growing crop, on land

Agricultural produce

on which such crop has grown; and (ii) also by affixing a copy on the house in which the judgment-debtor ordinarily resides, carries on business or personally works for gain, or last resided, carried on business or personally worked for gain. Immovable Property By an order prohibiting the judgment-debtor from transferring or charging it in any manner and all persons from taking any benefit from such transaction or charge.

* Source: C.K. Thakker, Civil Procedure (14th Edition, Lucknow: Eastern Book Company, 2001) at 390392.

5.0 Sale
5.1. General A decree may be executed by attachment and sale or by sale without attachment of any property. [34]Sections 65 to 74 and Rules 64 to 106 of Order 21 of the Code of Civil Procedure deal with the material provisions relating to sale and delivery of properties. 5.2. Power of Court Rule No. 64[35] of Order 21 of the Code of Civil Procedure states that any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. However, it must be noted that in Desh Bandhu v. Anand,[36] wherein the Court, while confronted with the twin issues of sale of properties situated outside the territorial jurisdiction of the Executing Court and the failure of the judgment-debtor to take objection in time, it was opined that: The term may in this rule does not confer a discretion on the Court to order or refuse to order a sale; it is obligatory on it to do so when a valid application for such order and a valid attachment has been made. The Court also went on to add that: This rule enjoins that in all execution proceedings the Court has to enquire whether sale of part of the property would be sufficient to satisfy the decree. Care should be taken to attach only such property whose value as nearly as may be is equal to the amount due under the decree. This is not just a discretion but an obligation and a mandate of the legislature which cannot be ignored. 5.3. Sale by Whom Conducted and How Made Rule No. 65[37] of Order 21 of the Code of Civil Procedure enacts that every sale in execution of a decree shall be conducted by an officer of the Court or by such person as the Court may appoint in this behalf, in a public auction. 5.4. Proclamation of Sale

A proclamation of sale is necessary for providing information to the intending purchasers. Thus, Rule No. 66[38] of Order 21 of the Code of Civil Procedure enacts that the Court shall cause a proclamation of the intended sale to be made in the language of the Court. Such a proclamation is to be drawn up after the notice to the decreeholder and the judgment-debtor. An absence of a notice causes irremedial injury to the judgmentdebtor and sale without such a notice will be a nullity.[39]
5.4.1. Purpose of a Proclamation It has been stated that a proclamation of sale is meant for the information of intending purchasers and not of the judgment-debtor.[40] However, in Narayanappa v. Akkulappa,[41] it was stated that the purpose of issuing a proclamation is two-fold: (a) it protects the interests of the intending purchasers by giving them all material information regarding the property to be sold; and (b) it protects the interests of the judgment-debtor by facilitating the fetching of proper market price for his property and by preventing it being knocked down at public auction for a price much below the market price. 5.4.2. Contents of the Proclamation Rule No. 66 (2)[42] of Order 21 of the Code of Civil Procedure enacts that the proclamation, which is to be drawn up shall state the time and place of sale, and specify as accurately as possible, the following particulars (a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree, such part;

(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any encumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property. 5.4.3. Mode of making Proclamation In order to protect the judgment-debtors and for the purpose of ensuring that the properties of such persons shall not be put to sale unless due publicity is given to the fact that a sale is to be held and a proper opportunity is afforded to bidders to attend the sale after notice is given[43] Rule No. 67 ofOrder 21 has been incorporated in the Code of Civil Procedure. Rule No. 67 of Order 21 of the Code of Civil Procedure provides that every proclamation shall be made and published in the manner prescribed by Order 21, Rule 54 (2) for attachment for immovable property, i.e., a copy of it shall be affixed on a conspicuous part of the property, and then of the Court house, and in the Collectors office, in the case of revenue paying land. Also, if the Court so directs, it shall also be published in local Official Gazette, or in a local newspaper, or in both.

5.5. Time for Sale Rule No. 68[44] of Order 21 of the Code of Civil Procedure provides that there shall be an interval of fifteen days in the case of immovable property and seven days in the case of movable property between the date of sale and the date of affixing the copy of the proclamation in the Courthouse.
However, it should be noted that the seven days rule does not apply to a sale of movables subject to speedy and natural decay.[45] 5.6 Sale of Movable Property

Rules No. 74 to 81 of Order 21 of the Code of Civil Procedure provide for specific provisions for the sale of movable properties.
5.6.1. Place of Sale of Movable Properties Sale of all movable properties in execution of a decree should ordinarily be held at some place within the jurisdiction of the court ordering such sale.[46] In the case of Lakshmibai v. Santappa,[47] where certain ornaments were attached in Belagaum and the judgment-debtor urged that they should be directed to be sold at Bombay on the ground that they would probably fetch a better price and it was found by the Court that a fair price could be had on the spot, it was held that there was no good and sufficient reason to depart from the usual practice. 5.6.2. When Sale Becomes Absolute in Movable Properties Sub Rule 2 of Rule 77 of Order 21 of the Code of Civil Procedure enacts that the sale of a movable property becomes absolute as soon as the purchase money is paid to the officer or other person holding the sale and no order of Court is necessary as in the case of the sale of immovable property. 5.6.3. Sale of Agricultural Produce Rule No. 74[48] of Order 21 of the Code of Civil Procedure makes special provision for the sale of agricultural produce. It provides that in case of agricultural produce, the sale shall be held on or near the land on which the crop is standing or where the crop has been harvested, at or near the place where the crop is lying. It is also pertinent to note that Sub Rule 2 of Rule 74 of Order 21 states that such a sale can be postponed, if the court feels: (i) that the fair price is not offered; and (ii) the owner thereof applies for such postponement. 5.6.4. Sale of Negotiable Instruments and Shares in Corporations Rule No. 76[49] of Order 21 of the Code of Civil Procedure makes special provision for the sale of negotiable instruments and shares in corporations. It provides that in case of negotiable instrument or a share in corporation, the court has power to order sale through a broker instead of by public auction. It is pertinent to note here that this rule is only permissive. A court is not bound to authorize the sale of negotiable instrument or share in a corporation through a broker.[50] 5.6.5. Effect of Irregularity on Sale of Movable Property Rule No. 78[51] of Order 21 of the Code of Civil Procedure stipulates that even in case of irregularity in publishing or conducting of sale, the sale of moveable property in execution decree can not be said aside. Thus, the sale does not ipso facto become void for reason of violation of provisions relating to the sale.[52] However, a person sustaining any injury by reasons of irregularity in the sale at the hand of any other person may sue such a person for compensation, or, if such a person is the purchaser, for recovery of the specific property and for compensation in default of such recovery.[53] 5.7. Sale of Immovable Property

Rules No. 82 to 96 of Order 21 of the Code of Civil Procedure provide for specific provisions relating to the sale of immovable properties.
5.7.1. Courts Competent to Order Sale Rule No. 82[54] of Order 21 of the Code of Civil Procedure stipulates that except the small cause court, any other court can give the order of sale of immovable property. 5.7.2. Postponement of Sale In order to prevent the sale of the immovable property of the judgment-debtor in cases where the decree can be satisfied by private alienation of such property, Rule No. 83 of Order 21 has been incorporated into the Code of Civil Procedure. It provides that on an application by the judgmentdebtor, the court in its discretion may give the judgment debtor some more time, to try and alienate the property in order to raise the requisite some of money. 5.7.3. Deposit and Payment of Price Rule Nos. 84 to 87 of Order 21 of the Code of Civil Procedure deal with the deposit and payment of price in cases of sale of immovable property. Immediately after the sale of immovable property, the purchaser must deposit 25 percent of purchase money, unless such requirement is dispense with by the court.[55] The purchaser must pay the balance of the purchase-money within fifteen days of sale. [56] In case of a failure on the part of the purchaser to deposit the amount, the advance may be forfeited and fresh sale ordered, after the issuance of a fresh notification.[57] Explaining the ambit and the scope of the provisions of Rules 84 to 86 of Order 21 of the Code of Civil Procedure, the Supreme Court in the case of Manilal Mohanlal v. Sayed Ahmed,[58] has stated that: Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of the opinion that the provisions of the rules requiring the deposit of 25 per cent of the purchase-money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase-money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. 5.7.4. Setting aside of Sale Rule Nos. 89 to 92 of Order 21 of the Code of Civil Procedure deal with the setting aside of sale. They provide that when a property is old in execution of a decree, an application for setting aside sale may be made under these provisions by the persons and on the grounds mentioned therein.[59] 5.7.5. Confirmation of Sale In contrast with the provisions relating to the sale of movable properties, no sale of immovable property shall be come absolute until it is confirmed by the Court.[60] Also, Rule No. 92 of Order 21of the Code of Civil Procedure, which deals with the procedure for confirmation of sale, provides that where no application to set aside the sale is made under Rules 89, 90 or 91 or where such application is made and is disallowed by the Court, the court shall make an order confirming the sale, and thereupon the sale shall become absolute. 6.0. Rationale

6.1. General The Code of Civil Procedure, which lays great significance to the need for the availability of elaborate and comprehensive provisions for the enforcement of the decrees and orders of the Court, provides for a varied procedure for the process of attachment and sale of the movable and immovable properties of the judgment-debtor by the decree-holder in his bid to realise the fruits of the decree. 6.2. Different Procedures and Reasons A variety of reasons can be attributed for the existence of different procedures for the attachment and sale of movable and immovable properties in the Code of Civil Procedure. Some of these differences and the reasons for the same are: (a) Ascertainment of Location One of the main differentiating characteristics between movable and immovable property is the factor of mobility. While an immovable property is fixed, a movable property is not, thus making it easier to ascertain the location of an immovable property. However, the same is not the case with immovable property. (b) Value As a general rule, an immovable property is generally large and of more expensive nature than a movable property. Therefore, he confirmation of the sale of the immovable property is often required, while in a movable property the confirmation of sale is not necessary. (c) Custody Since the location of an immovable property is well known and because by its very nature an immovable property cannot be hidden, taking an immovable property into custody is never a problem and the same can be done at any such time. However, in the case of movable property it might not be easy to ascertain its location and a movable property can be hidden, to deny the court its custody. Therefore, in case of movable property the Code of Civil Procedure recommends actual seizure of the property. (d) Legal Framework Since there exists a vast difference between the value of movable and immovable property, a variety of laws prescribe stringent provisions for obtaining the tile of immovable property. However, the legal regime governing the transfer of movable properties has to be of necessity less stringent and hence, movable property can be bought without any legal formalities, unless some formality has been expressly provided by law. This is in contrast with immovable properties, which may need transferring of documents and obtaining sale certificate etc. (e) Claims By its very nature an immovable property may contain within its fold various rights and charges, which is generally not the case with movable property. Thus, there may exist a number of claims on immovable property, which are far in excess of the number of claims on movable property, therefore, requiring elaborate procedures for the publicity of attachment and sale orders relating to immovable properties. (f) Revenue While the legal regime requires the maintenance of elaborate and permanent records in case of immovable property for various revenues purposes; such elaborate and permanent records are not required in case of movable properties. 7.0. Conclusion It has been said that the difficulties of a litigant begin when he has obtained a decree[61] The execution process, which commences with the filing of an application for execution, aims at the enforcement of a decree by a judicial process. Aware of the fact that a number of obstacles are placed in the way of a decree-holder, who seeks to execute his decree against the property of the judgmentdebtor, the Code of Civil Procedure provides for elaborate rules and procedures for the execution of decrees. In an attempt to enable the decree-holder to realize the fruits of the decree passed by the competent court in his favour, the Code of Civil Procedure allows for the attachment and sale of the properties of judgment-debtor as one amongst the various modes of executing a decree.

However, the nature of the properties of judgment-debtor liable for attachment is usually varied. The properties belonging to the judgment-debtor, which are sought to be attached and sold, may be movable or immovable. Since, movable and immovable properties by nature have differing rights; there are different legal regimes governing these two types of properties, and therefore the court has to cater to these different rights and proceedings. Thus, in an attempt to ensure that attachment and sale of the property of the judgment-debtor remains a viable and effective mode of execution of decrees the Code of Civil Procedure has prescribed different procedures for the attachment and sale of movable and immovable properties in execution of money decrees. This is best illustrated in the prescription of actual seizure of the property in cases of attachment of movable property, as in these cases a very real threat exist that the property might escape the jurisdiction of court. 8.0. Bibliography 1. C.K. Thakker, Civil Procedure (14th Edition, Lucknow: Eastern Book Company, 2001). 2. D.V. Chitaley et. al., The Code of Civil Procedure (Volume III, 8th Ed., Nagpur: All India Reporters Limited, 1971). 3. D.F. Mulla, The Code of Civil Procedure (P.M. Bakshi Ed., 12th Ed., Bombay: N.M. Tripathi Private Limited, 1990). 4. S.C. Sarkar et al., The Law of Civil Procedure (7th Edition, Vol. I, Calcutta: S.C. Sarkar and Sons Private Limited, 1986). 5. S.N. Singh, The Code of Civil Procedure Including Pleadings (14th Edition, Allahabad: Central Law Agency, 1990). 6. Salmond on Jurisprudence (P.J. Fitzgerald Ed., 12th Ed., Bombay: N.M. Tripathi Private Limited, 2000). 7. Umesh D. Shukla, The Key to Indian Practice (7th Edition, Bombay: N.M Tripathi Private Limited, 1994). [1] Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693. [2] Under English Law these are referred to as Chattels and Land. [3] However, the authenticity of this Doctrine is not wholly beyond dispute. In fact by Article 905 of the German Civil Code, the owner of land owns the space above it, but has no right to prohibit acts so remote from the surface that they in no way affect his interests. [4] Salmond on Jurisprudence (P.J. Fitzgerald Ed., 12th Ed., Bombay: N.M. Tripathi Private Limited, 2000) at 416-417. [5] Ibid at 418. [6] AIR 1986 All 182. [7] AIR 1991 SC 2251. [8] Section 51 of the Code of Civil Procedure reads as under: Powers of Court to enforce execution Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison for such period not exceeding the period specified by Section 58, where arrest and detention is permissible under that Section; (d) by appointing a receiver; or

(e)

in such other manner as the nature of relief may require.

[9] C.K. Thakker, Civil Procedure (14th Edition, Lucknow: Eastern Book Company, 2001) at 389. [10] Id. [11] Section 64 of the Code of Civil Procedure reads as under: Private alienation of property after attachment to be void Where an attachment has been made, any private transfer or delivery of the property attached or any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. [12] S.C. Sarkar et al., The Law of Civil Procedure (7th Edition, Vol. I, Calcutta: S.C. Sarkar and Sons Private Limited, 1986) at 178. [13] AIR 1965 A.P. 52. [14] Section 60 of the Code of Civil Procedure reads as under: Property liable to attachment and sale in execution of decree (1) The following property 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 saleable property 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 in his behalf. [15] (1984) 1 SCC 137. [16] Saleable as used in this Section means saleable by auction under the orders of a Court. [17] AIR 1975 Mad 19. [18] Rule No. 43 of Order 21 of the Code of Civil Procedure reads as under: Attachment of Movable Property, other than agricultural produce, in possession of the judgment-debtor Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the custody thereof: Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once. [19] D.V. Chitaley et. al., The Code of Civil Procedure (Volume III, 8th Ed., Nagpur: All India Reporters Limited, 1971) at 874. [20] AIR 1961 SC 803. [21] Rule No. 44 of Order 21 of the Code of Civil Procedure reads as under: Attachment of agricultural produce Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment, (a) where such produce is a growing crop, on the land on which the crop has grown, or (b) where such produce has been cut or gathered, on the threshing floor or place for treading out grain or the like or fodder stack on or in which it is deposited,

and another copy on the outer door or on some other conspicuous part of the house in which the judgement debtor ordinarily resides or, with the leave of the court, on the outer door or some other conspicuous part of the house in which he carries on business or personally works for gain or in which he is known to have last resided or carried on business or personally worked for gain; and the produce shall thereupon be deemed to have passed into the possession of the court. [22] AIR 1939 Rang 432. [23] Supra note 19 at 883. [24] Supra note 19 at 883. [25] Rule No. 46 of Order 21 of the Code of Civil Procedure reads as under: Attachment of debt, share and other property not in possession of judgment-debtor (1) In the case of (a) a debt not secured by a negotiable instrument, (b) a share in the capital of a corporation, (c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting, (i) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court; (ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon; (iii) in the case of other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor. (2) A copy of such order shall be affixed on some conspicuous part of the Court-house and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same. (3) The debtor prohibited under clause (i) of Sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same. [26] Rule No. 47 of Order 21 of the Code of Civil Procedure reads as under: Attachment of share in movables Where the property to be attached consists of share or interest of the judgment-debtor in movable property belonging to him and others as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way. [27] S.N. Singh, The Code of Civil Procedure Including Pleadings (14th Edition, Allahabad: Central Law Agency, 1990) at 266. [28] Rule No. 51 of Order 21 of the Code of Civil Procedure reads as under: Attachment of negotiable instruments Where the property is a negotiable instrument not deposited in a court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into the court and held subject to further orders of the Court.

[29] Supra note 19 at 928. [30] Rule No. 52 of Order 21 of the Code of Civil Procedure reads as under: Attachment of property in custody of Court or public officer Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or Officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued [31] D.F. Mulla, The Code of Civil Procedure (P.M. Bakshi Ed., 12th Ed., Bombay: N.M. Tripathi Private Limited, 1990) at 728. [32] Rule No. 54 of Order 21 of the Code of Civil Procedure reads as under: Attachment of immovable property (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. (1A) 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 proclamation of the 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 a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. [33] Supra note 19 at 955. [34] Supra note 9 at 397. [35] Rule No. 64 of Order 21 of the Code of Civil Procedure reads as under: Power to order property attached to be sold and proceeds to be paid to person entitled Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. [36] (1994) 1 SCC 131. [37] Rule No. 65 of Order 21 of the Code of Civil Procedure reads as under: Sale by whom conducted and how made Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed. [38] Rule No. 66 of Order 21 of the Code of Civil Procedure reads as under: Proclamation of sales by public auction (1) Where any property is ordered to be sold by public auction in execution of decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such a proclamation shall be drawn up after notice to the decree-holder and the judgmentdebtor.. [39] Supra note 9 at 398. [40] Supra note 19 at 1050. [41] AIR 1965 A.P. 215.

[42] Rule No. 66 (2) of Order 21 of the Code of Civil Procedure reads as under: Proclamation of sales by public auction (2) Such a proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as accurately as possible (a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree, such part; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) (d) any encumbrance to which the property is liable; the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:. [43] Supra note 19 at 1073. [44] Rule No. 68 of Order 21 of the Code of Civil Procedure reads as under: Time of Sale Save in the case of property of the kind described in the proviso to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least fifteen days in the case of immovable property, and of at least seven days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the Court-house of the Judge ordering the sale. [45] Rule No. 43 of Order 21 of the Code of Civil Procedure reads as under: Attachment of Movable Property, other than agricultural produce, in possession of the judgment-debtor . Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once. [46] Supra note 9 at 400. [47] AIR 1964 Bom 342. [48] Rule No. 74 of Order 21 of the Code of Civil Procedure reads as under: Sale of Agricultural Produce (1) Where the property to be sold is agricultural produce, the sale shall be held (a) if such a produce is a growing crop, on or near the land on which such crop has grown, or (b) if such a produce has been cut and gathered, at or near the threshing floor or place of treading out grain or the like or fodder stack on or in which it is deposited: Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of the opinion that the produce is thereby likely to sell to greater advantage. [49] Rule No. 76 of Order 21 of the Code of Civil Procedure reads as under: Negotiable Instruments and Shares in Corporations Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorize the sale of such instrument or share through a broker.. [50] Supra note 19 at 1106.

[51] Rule No. 78 of Order 21 of the Code of Civil Procedure reads as under: Irregularity not to vitiate sale, but any injured person may sue No irregularity in publishing or conducting the sale of movable property shall vitiate the sale. [52] Supra note 9 at 401. [53] See Rule No. 78 of Order 21 of the Code of Civil Procedure. [54] Rule No. 82 of Order 21 of the Code of Civil Procedure reads as under: What Courts may order sale Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes. [55] See Rule No. 84 of Order 21 of the Code of Civil Procedure. [56] See Rule No. 85 of Order 21 of the Code of Civil Procedure. [57] See Rule Nos. 85, 86 and 87 of Order 21 of the Code of Civil Procedure. [58] AIR 1954 SC 349. [59] Supra note 9 at 403 [60] Supra note 9 at 409. [61] Supreme Court of India in the case of Shyam Singh v. Collector, Hamirpur, 1993 Supp (1) SCC 693.

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