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Civil Procedure Code

The document discusses the legality of attaching a property owned by B in order to satisfy a court decree of Rs. 10,000 against B, and the subsequent sale of the property by B to C. It analyzes the relevant sections of the Civil Procedure Code regarding attachment of property, finding that (1) the court's attachment of B's property was legally valid, and (2) B's sale of the property to C after attachment is void against the claimant as per Section 64(1) of the CPC.

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52 views

Civil Procedure Code

The document discusses the legality of attaching a property owned by B in order to satisfy a court decree of Rs. 10,000 against B, and the subsequent sale of the property by B to C. It analyzes the relevant sections of the Civil Procedure Code regarding attachment of property, finding that (1) the court's attachment of B's property was legally valid, and (2) B's sale of the property to C after attachment is void against the claimant as per Section 64(1) of the CPC.

Uploaded by

cifex10357
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPTX, PDF, TXT or read online on Scribd
You are on page 1/ 14

CIVIL PROCEDURE

CODE
INTRODUCTION
• A sues B for Rs.10,000. B owns a house worth Rs.10,000 and he has no other
property.The property is attached in execution of a decree. Subsequently B sells the
property to C. Examine the legality of the attachment and transfer of property of C.
FACTS

• A sues B for Rs.10,000. B owns a house worth Rs.10,000 and he has no other
property.The property is attached in execution of a decree. Subsequently B sells the
property to C.
ISSUES INVOLVED

• Whether the attachment of property by the court is legally sustainable?


• Whether the transfer of property from B to C be held as valid?
LEGAL REASONING

• 1. Attachment of property is one of the modes of execution of a decree


• In a decree, the court may require a person(defendant) to pay an amount to the decree-
holder. In cases where the defendant fails to pay the required sum, the court can, in the
execution of its decree, attach the movable and immovable property of the defendant and
recover the amount which is due by the disposal of these assets.
• Section 38 of CPC states as to who can execute the decree. A decree may be executed
either by the court which passed it, or by the Court to which it is sent for execution.
• For the purpose of attachment of immovable property, the court passes an order by which
it forbids the judgement debtor from transferring or charging the property and precludes
all persons from taking any benefit from such transfer or charge.
• Case law:- CS Mani Vs. B. Chinnasamy Naidu
• Once an immovable property is attached such attachment shall continue till the subject
property is sold,or is determined or removed in terms of Rules 55,57and 58.
• Decree Holder is Dominus litis(person to whom the suit belongs) and he has the right to
choose the mode of execution from those available to him. Neither the Court nor the
Judgement debtor can force or persuade him to choose a particular mode of execution. This
can be referred from the case of V. Dharmavenamma v. C. Subrahmanyam Mandadi.
• 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 Section 64 and Rules 41-57 of Order 21 of CPC 1908, deals with
the matter of attachment of property.
• Section 60 CPC,1908 describes the property which can and cannot be attached while
execution. Several types of property are liable for attachment and sale in execution of a
decree like lands, houses,goods, money, banknotes, checks, government securities,
bonds,etc., and things on which he has a disposing power.
• There is express mention of particulars which shall not be liable for attachment or sale.
• The decree under this section is only a money decree and it does not include a mortgage
decree. Therefore, it is important that the property not only belongs to the judgement-
debtor but also he has disposing power on it.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the Judgement-
debtor was liable to be sold for execution of the decree as his contention of agricultural
produce was declined.
• Section 61
grants partial exemption to agricultural produce

• Section 62
Talks about seizure of property in case of dwelling house.

• Section 63
says that where the property attached in execution of decree is going on in several courts then the
final decision of the court of higher grade prevails and where the court are at same grades then
the court where the case of attachment came first will hold a higher value.
• Some kind of property which cannot be attached and sold in execution of a decree is
expressly mentioned in Section 60 of the Code of Civil Procedure.
Particulars like wearing apparel, cooking vessels, beds, tools of artisans, any right of personal service,
wife and children, stipends and gratuities allowed to pensioners of the Government etc and many more.
• 2. Attachment creates no charge or lien upon the attached property. It only confers a right
on the decree-holder to have the attached property kept incustodia legis for being dealt
with by the court in accordance with law.It merely prevents and avoids private
alienations; it does not confer any title on the attaching creditors
• Section 64(1) states that a private alienation of property made after the attachment is void
as against the claims enforceable under the attachment.
• Section 64(2) says clarifies that this section is not applicable in case of transfer of
property in pursuance of a contract entered into before the attachment
• This provision is inserted in the Code to stop any kind of fraud on decree-holders and to keep the interests of the
judgement-creditors who are entitled to be satisfied out of the assets of the judgement-debtor.
• This provision in a way interferes with the rights of the owner in alienating his property and hence is construed
strictly.
• However, since it is for the benefit of the creditor he can waive this benefit.
• A private transfer here means a voluntary transfer like sale, lease, gift, mortgage etc. the transfer directed by the
court is not included in private transfer.
• Therefore a private transfer in contravention of Section 64 is not wholly void against all other transactions bit is
void only against the claims enforceable under the attachment and only to the extent necessary to meet those
claims.
JUDGMENT

In light of the above Reasoning, on Sections 60 to Section 64 and Rules 41-57 of Order
21 of CPC 1908, the attachment of property by the court is found to be legally sustainable.
On the basis of Section 64(1) Private alienation of property made after the attachment is
void as against the claims enforceable under the attachment. Therefore,the transfer of
property from B to C is not valid.
THANK YOU

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