622A Civil Litigation

Department of Law
University of Yangon

Attachment of Property in Execution of Decree

under the Code of Civil Procedure

Submitted by;
Nang Su Htar Nee
1 LL.M- 28
Civil Law Specialization
(Date: 24.1.2024)
 1

Introduction
Every civil suit is accompanied by three stages which starts from the initiation or institution
of suit, adjudication of suit and finally the implementation of the litigation. The implementation
of the litigation is the step in which the results of the adjudication are put into action, which is
known as execution. It is the process of enforcing or giving effect to the order or judgment passed
by the Court. Where a decree holder of a decree desires to execute it, he shall apply to the Court
with the application for the execution of decree in the manner mentioned in Order XXI, Rule 11
of the Code of Civil Procedure, 1909. A decree may be executed either by the Court which passed
it or by the Court to which it is sent for execution.1 In case of the judgment-debtor has property
,deemed sufficient to satisfy the decree, outside the local limit of the jurisdiction of the Court which
passed the decree, such decree shall be transferred to another Court in which the said property
situate.2 There are various modes of execution of a decree, it is mentioned in Section 51 of the
Code of Civil Procedure as ‘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-3

(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;
(d) By appointing a receiver; or
(e) In such other manner as the nature of the relief granted may require.

Regarding with choice of appropriate mode of execution, the various modes mentioned in this
section are not open to the executing court in every case. The Court ought to be guided by the
procedure laid down in the Code and must resort to the method appropriate to each case. 4

Nature and scope of attachment of property

Attachment of property is one of the modes of execution of decree in a civil suit. In a

decree, the Court may require a judgment debtor to pay an amount to the decree holder. In cases

1
Section 38, the Code of Civil Procedure, 1909.
2
Section 39, Ibid.
3
Section 51, Ibid.
4
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-132.
 2

where defendant fails to pay the required sum, the court can, in the execution of its decree, attach
the movable and immovable property of the judgment debtor and recover the amount which is due
by the disposal of these assets. Section 60 to 64 and Rule 41 to 57 of Order XXI of the Code of
Civil Procedure, 1909, deal with the matter of attachment of property. The primary object of
attachment of property is to give notice to the judgment-debtor not to alienate the property to
anyone as also to the general public not to purchase or in any other manner deal with the property
of the judgment-debtor attached in execution proceedings.

Property liable and not liable to attachment and sale

Section 60(1) deals with both the property which can be attached and cannot be attached
in execution of a decree. These properties may be prescribed as follows;

(1) Property which can be attached

The property which can and cannot be attached while execution of decree is mentioned in
Section 60(1) of the Code of Civil Procedure, 1909. The property which is liable to attachment
and sale in execution of a decree are lands, houses or other buildings, goods, money, bank-notes,
cheques, bill of exchange, hundis, promissory notes, government securities, bonds or other
securities for money, debts, shares in a corporation, and all other saleable property, moveable or
immoveable. 5 The property can only be attached if it belongs to judgment-debtor or over which,
or the profit 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. 6

(2) Property which cannot be attached

Some kind of property which cannot be attached and sold in execution of a decree has been
expressly mentioned in Clause (a) to (p) of Section 60(1) of the Code of Civil Procedure, 1909.
Particulars such as wearing apparel, cooking vessel, beds or bedding of judgment-debtor, his wife
and children, and such personal ornaments as cannot be parted with by any woman, and tools of

5
Section 60(1) of the Code Civil Procedure, 1909.
6
Ibid
 3

artisans cannot be attached and sold.7 Regarding the word “artisans”, it was held in the case of
Maung Kyine v. U Ba and another8 that ‘artisan’ means a professional worker with an industrial
art, mechanic, handicraftsman, artificer the one cultivates an art and the artist. Moreover, in the
case of Po Thaung v. U Kaung9, it was decided that as a photographer is an artisan and the articles
such as cameras, photo drying frames, enamel trays, camera stands, stoves for drying films and
other paraphernalia essential for making photographs are regarded as tools of artisan, so they are
exempted from attachment within the meaning of Section 60(1) (b) of the Code of Civil Procedure.

Where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle
and seed grain as may be necessary to enable him to earn his livelihood, houses and other buildings
(with the materials and the sites thereof and the land immediately appurtenant thereof and
necessary for their enjoyment) belonging to an agriculturist and occupied by him, are exempted
from attachment and sale in execution of a decree.10 The term agriculturist includes persons
engaged in cultivating the soil for remuneration although they may have no interest in the soil
either as proprietor or tenant, but his livelihood depends upon the proceeds derived from that tillage
of the soil and this occupation is essential to his maintenance. 11 Relating with the exemption of the
house of agriculturists, Bank of Chettinad v. Ko San Ok and one12 said that houses owned and
occupied by an agriculturist which are not connected to his livelihood are not exempted from
attachment as the clause clearly express that only the house where an agriculturist habitually lives
or currently owns for the purpose of farming is amount to exemption.

Moreover, any right of personal service and right to sue for damages cannot be attached.13
In addition, property exempted from attachment are: gratuities allowed to pensioners of the
Government, the pay and allowances of persons to whom the Defense Services Act, 1959 applies,
any allowance which the President of the Union may by notification in the Gazette declare to be
exempt from attachment and any allowance declared by any enactment in force in the Union of
Myanmar to be exempt from liability to attachment .14 Regarding with pensions, private pensions,

7
Section 60(1) (a) and (b) of the Code of Civil Procedure, 1909.
8
Maung Kyine v. U Ba and another, 1958 BLR (HC) 321.
9
Po Thaung v. U Kaung, 1956 BLR 528.
10
Section 60(1) (b) and (c) of the Code of Civil Procedure, 1909.
11
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-152.
12
Bank of Chettinad v. Ko San Ok and one, 11 Ran, 372 FB.
13
Section 60(1) (e) and (f) of the Code of Civil Procedure, 1909.
14
Section 60 (1) (g) (j) (l) and (o), the Code of Civil Procedure, 1909.
 4

as distinguished from Government pensions, are not exempt from attachment and they may
attached either as “debts” or as “property belonging to the judgment-debtor” within the meaning
of this section. 15

On the other hand, some portion of salary of any public officer or of any servant of local
authority, and of laborers and domestic servants cannot be attached. 16 The portion of salary which
cannot be attached is the first thirty thousand kyats and one-half the remainder of such salary. 17 It
means that other than such portion can be attached in execution of a decree. For example, if the
salary is 100,000 kyats, the 30,000 kyats plus one-half the remainder of 70,000 kyats i.e. 35,000
kyats – in all 65,000 would be un-attachable, leaving only 35,000 kyats available for attachment.
In addition, the salary of employees in private firms cannot be attached in the same way as can the
salary of Government officers and others.18 The salary of a private servant to the extent allowable
can be attached as a ‘debt’; hence it cannot be attached before it has become due. 19

It has to be noted that an objection that the properties attached are exempted under this
section can be raised at any time before the sale, but not after the sale is confirmed. But where the
judgment-debtor had no notice of the proceedings and was not aware of the sale, the objection can
be raised even after sale. 20

Property attached in execution of decrees of several Courts

Section 63 of the Code of Civil Procedure, 1908 provided that ‘Where property not in the
custody of any Court is under attachment in execution of decree of more Courts than one, the Court
which shall receive or realize such property and shall determine any claim thereto and any
objection to the attachment thereof shall be the Court of highest grade, or where there is no
difference in grade between such Courts, the Court under whose decree the property was first
attached.’ The object of this section is to prevent different claims arising out of the attachment and

15
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-154.
16
Section 60 (h) and (i), Ibid
17
Section 9(b) of the Law Amending the Code of Civil Procedure, 2014
18
Section 227 of the Court Manual, 1999.
19
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-155.
20
Ibid, p-156.
 5

sale of the same property by different Courts, in other words, it is to prevent confusion in the
execution of decrees.21

In the case of Nyein Hla v. Aung Gyi22, in the case filed in the Sub-divisional Court, A
won the decree against B, and A made the attachment on the debt which was due from a municipal
group to B (the judgment-debtor). On the other hand, C who filed a lawsuit against B in the District
Court also won the decree over B and made the attachment of the same debt which was due from
a municipal. Thereafter, the municipal made the payment of such debt into the District Court.
When A (the decree-holder) applied to the District Court to apportion such money proportionately,
it was rejected. In the appeal Court, it was held that the District Court is responsible for making
both attachment effective according to Section 63 and the Court had to make proportional
distribution between the two decree-holder.

Modes of attachment of property

Before attaching the property, there is a step to examine the property of the judgment-
debtor. Where a decree is for the payment of money, the decree-holder can apply to the court to
orally examine the judgment-debtor or officer or any other person as to whether any or what debts
are owning to the judgment-debtor and what property or means he has to satisfy the decree. 23 The
Court can make an order for the attendance and examination of such judgment-debtor for the
production of any books or documents. 24 In order to attach the property, the decree-holder should
be asked to pay the necessary fees to the Bailiff for the custody of property. Then, the bailiff shall
directly pay to the temporary or permanent peons who are employed by the Bailiff in order to take
charge of the attached property.25 In addition to such fees, the decree-holder need to deposit a sum
of money sufficient to cover the cost of attachment, for example, rent of building in which to store
the attached property, other than the pay of peons employed. 26

21
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p- 158.
22
Nyein Hla v. Aung Gyi, 8 LBR 204.
23
Order XXI Rule 41 of the Code of Civil Procedure, 1909.
24
Ibid.
25
Order XXI Rule 45A, the Code of Civil Procedure, 1909.
26
Order XXI Rule 45B, the Code Civil Procedure, 1909.
 6

In attaching the property, Section 62 of the Code of Civil Procedure says about seizure of
property in dwelling-house. Pursuant to this section, a person executing under the code shall not
enter the premises of a dwelling house after sunset and before sunrise. Moreover, no door of such
dwelling house can be broken without the knowledge of the judgment-debtor. Where a woman
resides in such house and she is not allowed to appear in public, the person executing has to give
her a notice at liberty to withdraw and also reasonable time to do the same. Once she withdraws,
he has the power to enter the premises.27

Modes of attachment of property of the judgment-debtor may be divided into two classes;
moveable and immoveable.

(1) Modes of attachment of movable property

Attachment of moveable property is done in different ways according to the nature of the
property and its different modes is prescribed in Order XXI, Rule 43 to 53 of the Code of Civil
Procedure as follows;

Attachment of movable property other than an agricultural produce

When the property to be attached is movable property which is not an agricultural produce,
then the attaching officer can seize the property and keep it in his own custody or in the custody
of one of his subordinates, and shall be responsible for the due custody thereof. 28 But if the property
seized is of perishable nature or the cost of keeping it is likely to exceed its value, the attaching
officer can sell it at once.29 Where the goods attached under this rule were delivered to a third
person, on his executing a bond undertaking to deliver them, when demanded, and to pay their
price in case of default and they were destroyed by fire, it was held that he was not liable on the
bond as the loss was due to an act of God.30 However, if the goods attached were damaged while
in the custody of the attaching officer, owing to his negligence, it was held that he was liable in
damages for the loss sustained. 31

27
Section 62, Ibid.
28
Order XXI Rule 43 of the Code of Civil Procedure, 1909.
29
Ibid.
30
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-568.
31
Ibid
 7

Attachment of agricultural produce

Where the property to be attached is agricultural produce, a copy of the warrant of

attachment can be affixed on the land on which such crop is grown, or where the produce has been
cut or gathered, or on the threshing treading floor or fodder-sack.32 One other copy shall be affixed
on any conspicuous part of the judgment-debtor house or in which he carries on business.33 Where
agricultural produce is attached, it is requires it to be made in the application the time at which it
is likely to be fit to be cut or gathered for the purpose of enabling the Court make appropriate
arrangement.34 The judgment-debtor need to take all necessary steps or actions for preserving or
maturing it and if the judgment-debtor fails to do the same, the decree-holder can carry out all
necessary steps and recover the expenses from the judgment-debtor.35 When attaching agricultural
produce, it is to be aware that a growing crop which from its nature does not admit of being stored
shall not be attached at any time less than twenty days before the time it is likely fit to be cut or
gathered.36

Attachment of debt, share and other property not in possession of judgment-debtor

Rule 46 of Order XXI of the Code of Civil Procedure, 1908 can be divided into three parts.
Firstly, attachment of a debt not secured by negotiable instrument. The attachment can be made
by a written order prohibiting the creditor from recovering the debt and debtor from making any
payment thereof until the further order of the Court.37 Moreover, the court can attach the money
of the judgment-debtor which he keeps at the bank and issue a written order prohibiting the bank
from making any payment to the judgment-debtor which was held in the case of J.P. Rajaram v.
The Manager, Reserve Bank of India.38

This provision of Rule 46(1) (i) mainly deals with garnishee proceedings, where the money
of the judgment-debtor is in the hands of third person. Rule 63A to Rule 63 G deals exclusively
with the garnishee orders. A garnishee order is an order passed by the court directing or ordering
a garnishee not to pay money to the judgment-debtor since the latter is indebted to the decree-

32
Order XXI Rule 44 of the Code of Civil Procedure, 1909.
33
Ibid
34
Order XXI Rule 45(1), the Code of Civil Procedure, 1909.
35
Order XXI Rule 45(2), Ibid.
36
Order XXI Rule 45(5), Ibid.
37
Order XXI Rule 46(1) (i) of the Code of Civil Procedure, 1909.
38
J.P. Rajaram v. The Manger, Reserve Bank of India, 1941 RLR, 759.
 8

holder. Garnishee means the person who owes the debt to the judgment-debtor.39 The object of
Rule 63A is to render the debt due by the debtor of the judgment-debtor available in execution to
the decree-holder. The Court may, upon the application of the decree-holder, issue a notice to
garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from him
to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of
execution, or to appear and show cause why he should not do so.40

However, if the garnishee neither makes the payment into the Court as ordered, nor appears
and shows any cause in answer to the notice, the Court may order the garnishee to comply with
such notice as if such order were a decree against him. 41 But where garnishee appear in answer to
the notice and disputes his liability, the Court must raise an issue, and determine the liability of
garnishee.42 Orders passed in garnishee proceedings are appealable as decrees. Where a decree is
passed against the legal representatives of a deceased garnishee, and a disputes arises whether
certain moneys represent the assets of the deceased or are the personal properties of the judgment-
debtor, that is a question which must be determined in the course of execution proceedings. 43

Secondly, in case of attachment of share in the capital of a corporation, the owner of the
share will be prohibited from transferring the share or receiving any dividend according to an order
of the Court.44 Finally, in case of attachment of movable property not in the possession of
judgment-debtor, except a property deposited with the Court or in the custody of the Court, the
person in the possession of such property will be stopped from giving it to the judgment-debtor as
per the order from the Court.45 Therefore, if the judgment-debtor has transferred his property to
the possession of a third person, the attachment must only be made by a prohibitory order, but
cannot seal up the third person’s warehouse in which the goods are stored. 46

Regarding the procedure for attachment, Order XXI Rule 46(2) of the Code of Civil
Procedure provided that ‘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

39
Section 224 of the Court Manual, 1999.
40
Order XXI Rule 63B, the Code of Civil Procedure, 1909.
41
Order XXI Rule 63C (1), Ibid.
42
Order XXI Rule 63C (2), Ibid.
43
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-572.
44
Order XXI Rule 46 (1) (ii) of the Code of Civil Procedure, 1909.
45
Order XXI Rule 46 (1) (iii) of the Code of Civil Procedure, 1909.
46
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-572.
 9

share, to the proper officer of the corporation, and, in the case of the other movable property, to
the person in possession of the same.

Attachment of share in movables

Where the property to be attached consists of the share or interest of the judgment-debtor
in movable property belonging to him and another as co-owner, 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. 47 Such share or interest is obviously incapable of actual seizure, and the provision
has, therefore, been made for the issue to the judgment-debtor of a notice prohibiting him from
transferring his share or interest in any way. If the property is wrongly attached by seizure, it must
be released under Rule 60 and a fresh order made for attaching the interest of the debtor. 48 In the
case of U Pe v U Maung Muang Kha49, it was held that regarding property owned by a Burmese
Buddhist husband and wife, when a decree is imposed on a single husband or wife, the entire
property owned by both of them cannot be attached and sold, but can only attach the interest of
the husband or wife who is subject to the decree.

Attachment of salary of public officer or railway authority or local authority

Where the property to be attached is the salary or allowance of a public officer or of a

railway authority or local authority, whether the judgment-debtor or the disbursing officer is or is
not within the local limits of the Court’s jurisdiction, the Court may order that the amount shall be
withheld from such salary in the manner mentioned in Section 60, either in one payment or by
monthly instalments as the Court may direct.50 Then the disbursing officer may withhold and remit
to the Court, the amount due under the order or the monthly instalments as the case may be. 51

Attachment of partnership property

A partnership property cannot be attached in execution of a decree and such attachment

would be allowed only in a situation where the decree is passed against the firm or the partners in
the firm.52 If the decree holder makes an application against the partner, the Court can issue an

47
Order XXI Rule 47 of the Code of Civil Procedure, 1909.
48
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-574.
49
U Pe v U Maung Muang Kha, 10 Ran 261 P.C.
50
Order XXI Rule 48 of the Code of Civil Procedure, 1909.
51
Ibid
52
Order XXI Rule 49(1), the Code of Civil Procedure, 1909.
 10

order charging interest of such partner in the partnership property and appoint a receiver to
ascertain the partner’s share in the profit or any amount he has to receive and further make sale. 53
In case a decree is against the partnership firm, the partnership property can be attached. 54

Attachment of negotiable instrument

According to Rule 51 of Order XXI of the Code of Civil Procedure, 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 Court and
held subject to further orders of the Court. The proper method of attaching a promissory note in
the hands of an individual is by actual seizure, and not by the issue of a prohibitory order, for if it
is not seized, the promise may negotiate it and mere notice will not avail against a holder in due
course.55

Attachment of property in the custody of Court or public officer

Where the property to be attached is within a custody of court or public officer, a notice
will be served to them stating that such property should be held subject to further orders of the
Court.56 However, during the property in the custody of the court, any question of title or priority
arising between the decree-holder and any other person, not being the judgment-debtor shall be
determined by such Court.57

Attachment of decrees

Where the property to be attached is a decree, either for the payment of money or
for sale in enforcement of a mortgage or charge, the attachment shall be made, if the decrees were
passed by the same Court, then by the order of such Court.58 After the court make the order of
attachment, upon the application of the creditor who has attached the decree or his judgment-
debtor, it shall proceed to execute the attached decree and apply net proceeds in satisfaction if the
decree sought to be executed.59 For example, D1 obtains a decree for five thousand against J in X

53
Order XXI Rule 49(2), Ibid.
54
Order XXI Rule 50, Ibid.
55
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-582.
56
Order XXI Rule 52 of the Code of Civil Procedure, 1909.
57
Ibid
58
Order XXI rule 53 (1) (a), the Code of Civil Procedure, 1909.
59
Order XXI rule 53 (2), Ibid
 11

Court. D2 also obtained a decree for six thousand against D1 in X Court. If D2 wants to attach a
warrant to the decree obtained by D1 in order to execute his decree against D1, he shall apply to
X Court for the attachment of the decree and either D1 or D2 shall apply to the Court to execute
the attached decree. D2 has the right to apply as he shall be considered as a representative of D1
which was said in Rule (53) (3) of Order XXI that the holder of a decree sought to be executed by
the attachment of another decree shall he deemed to be the representative of the holder of the
attached decree.

However if the decree sought to be attached was passed by another Court, then the
attachment of the decree shall be made by the issue to such other Court and to any Court to which
it may have been transferred for execution, requesting such other Court to stay execution of the
decree unless and until-60

(i) The Court which passed the degree sought to be executed cancels the notice, or
(ii) The holder of the decree sought to be executed or his judgment-debtor applies to the
Court receiving such notice to execute its own decree.

To explain with illustration, D1 won a decree for sale in enforcement of mortgage against J in X
Court. On the other hand, D2 also obtained a decree for six thousand against D1 in Y Court. When
D1 applied to X Court to execute the mortgage decree against J, the Court Y, in order to attach
that mortgage decree, shall issue to the X Court to stay the execution obtained by D1 unless and
until- the order is cancelled by Y Court, or either D1 or D2 apply to the Court X to execute the
mortgage decree. After that, X shall proceed with the execution of the attached decree and shall
pay the net proceeds obtained by such execution to D2.

(2) Modes of attachment of immoveable property

Pursuant to Order XXI Rule 54(1) of the Code of Civil Procedure, 1909, the procedure for
attachment of immoveable property starts with issuing a prohibitory order to the judgment-debtor
and to the public generally in order to stop the judgment-debtor from transferring the property or
charging it. Beating of drum or any customary practice will be carried out for the purpose of
proclamation of the order, and the copy of it will be affixed on the conspicuous part of the property

60
Order XXI Rule 53 (1) (b), Ibid
 12

as well as on the Court house, and in the office of the Collector of the district in which the land is
situate if the property is land paying revenue to the Government. 61

A property can be held to have been attached only when firstly there is an order of
attachment, and secondly, in execution of the order the formalities prescribed in the rule are
complied with, that is, there should be a prohibitory order restraining the person from alienating
the property sought to be attached.62

Order XXI Rule 54(3) of the Code of Civil Procedure provided that ‘the order of attachment
shall take effect, as against transferees without consideration from the judgment-debtor from the
date of the order of attachment, and as against all other persons from the date on which they
respectively had knowledge of the order of attachment, or the date on which the order was duly
proclaimed under sub-rule (2), whichever is the earlier. The purpose of issuing a prohibitory order
under this Rule is to prevent the judgment-debtor from transferring or alienating the property.

Section 64 of the Code of Civil Procedure, 1908 deals with private alienation of property.
This section said that ‘Where an attachment has been made, any private transfer or delivery of the
property attached or of any interest therein, and any payment to the judgment-debtor of any debt,
dividend or other monies contrary to such attachment, shall be void as against all claims
enforceable under the attachment.63’ However, a private transfer under this section is not
absolutely void, but void only as against claims enforceable under the attachment. 64 As an
illustration, B’s property is attached in execution of a decree obtained by A against him. While the
attachment is pending, B sells the property to C, and pays out of the sale proceeds the amount of
the decree into Court, and the attachment thereupon ceases according to Order XXI Rule 55 of the
Code of Civil Procedure. The sale to C is valid since the decree having been satisfied by payment
into Court.65

Moreover, as per Section 46 of the Code of Civil Procedure, attachment of immovable

property can be made under percept, under which an interim attachment is provided to the decree-
holder. This section described that the Court which passed the order may on the request of the

61
Order XXI Rule 54(2) of the Code of Civil Procedure, 1909.
62
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-586.
63
Section 64 of the Code of Civil Procedure, 1909.
64
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-160.
65
Late Sri T.L Venkatarama Aiyar, Mulla on the Code of Civil Procedure, 10th edition, 1972, p-161.
 13

decree-holder, issue a percept to the Court within whose jurisdiction the property of the judgment-
debtor is lying to be attached to any property specified in the percept. 66 Thus, a precept aims at
preventing alienation of property of the judgment-debtor not located within the jurisdiction of the
Court which passed the decree.

Removal and determination of attachment

The attachment shall be deemed to be withdrawn in the following cases: 67

(a) The decreed amount, all costs, charges, and expenses from the attachment of property are
paid into the Court, or
(b) Satisfaction of the decree is made through the Court or certified to the Court, or
(c) The decree is set aside or reversed

In case of immoveable property, the withdrawal of attachment can be proclaimed by the judgment-
debtor and the copy of such a proclamation can be affixed in a conspicuous part of the property
and the court house at his expense.68 Moreover, the attachable property can be release if the
judgment-debtor gave security to the value thereof to the Court.69

In case where the property has been attached in execution of a decree but by reason of the
decree-holder’s default the Court is unable to proceed further with the application for execution,
it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a
future date. Upon the dismissal of such application the attachment shall cease.70

Claim or objection to attachment

As per Order XXI, Rule 58 to 63, any person can claim or make objection to the attachment
if he had some interest in, or was possessed of the property attached. The objector must adduce
evidence to show that he actually had some interest in the attachable property. Thereupon, the
Court shall proceed to investigate the claims or objections, and where the Court is satisfied with
the reason of the claim or objection, it can make an order releasing the property wholly or to such
extent as it think fit from attachment. However, if the Court consider that the claim or objection

66
Section 46 of the Code Civil Procedure, 1909.
67
Order XXI Rule 55 of the Code of Civil Procedure, 1909.
68
Order XXI Rule 55, the Code of Civil Procedure, 1909.
69
Order XXI Rule 57A, Ibid.
70
Order XXI Rule 57, Ibid.
 14

was designedly or unnecessarily delayed, no such investigation shall be made. According to rule
63 of Order XXI, where a claim or an objection is preferred, the party against whom an order is
made may institute a suit to establish the right which he claims to the property in dispute, but,
subject to the result of such suit, if any, the order shall be conclusive. The institution of such suit
shall be made within one year from the date of such order.71

In case of Daw Soe San Thein v. Daw Khin Myint (a) Daw Htar Htar Nyunt and two
others72, in original suit, the decree-holder filed a suit for administration of inheritance property
against the decree-holder and the High Court of Yangon made an order that the flat in matter was
an inheritance and issue an attachment order under OrderXXI Rule 54 of the Code of Civil
Procedure. Then, the appellate, Daw Soe San Thein, made a claim that the flat was belong to her
as she bought it from the judgment-debtor, but the High Court dismissed such application under
Order XXI Rule 61. Such the dismissed order was then filed for a review in the Supreme Court
which was again rejected.

So the appellate filed a suit for a declaration that she was the owner of the flat under Section
41 of the Specific Relief Act in the High Court of Yangon. The Court held that if the application
of objection against attachment under Rule 58 is not successful, it is expressly stipulated that a suit
may be instituted under Rule 63, and therefore cannot be prosecuted under Section 42 of the
Specific Relief Act. Moreover, the suit under Rule 63 shall be instituted within one year from the
date when order was made. It was found that the appellate cannot now institute such suit as the
date on which the Supreme Court dismissed the application for review was beyond the time limit.
So the case was dismissed by the High Court of Yangon. The appellate dissatisfied and appeal
such case to the Supreme Court which it affirmed the decree and judgment of the High Court and
dismissed the appeal.

71
Article 11(1) of the First Schedule of the Limitation Act, 1909.
72
Daw Soe San Thein v. Daw Khin Myint (a) Daw Htar Htar Nyunt and two others, Civil Appellate Case No.356.
 15

Conclusion

To sum up, it can be said that attachment of property can be specifically required if the
debt is not cleared. The Civil Procedure Code, 1909 includes many procedures and modes of
attachment of different kinds and property. Attachment is the first step and sale of the property
will be carried out after attachment. In some cases sale can be done without attachment of property
as well. Anyhow, the main purpose of attachment of property is to give an assurance to the decree-
holder that he surely may get the fruits of the decree by preventing the judgment-debtor from
alienating of the respective property.