In civil proceedings, when a judgment-debtor fails to comply with a court decree, the decree-holder can seek execution. One of the most effective methods of execution under the Code of Civil Procedure, 1908 (CPC) is through attachment and sale of property. These provisions ensure enforcement of court orders and realization of the decreed amount.
Legal Provisions: Code of Civil Procedure, 1908
The process of attachment and sale of property is primarily governed by:
- Order 21 Rules 41–106 CPC
- Sections 51–64 CPC
What is Attachment?
Attachment is a legal process where the court seizes the property of the judgment-debtor to satisfy the decree passed in favor of the decree-holder.
Objective: To prevent alienation or disposal of property by the judgment-debtor.
Types of Properties That Can Be Attached
Properties Liable to Attachment:
- Movable property (vehicles, goods)
- Immovable property (land, buildings)
- Bank accounts
- Salaries and rents
- Shares and securities
Properties Not Liable to Attachment (Section 60 CPC):
- Necessary wearing apparel
- Tools of artisans
- Houses and land of agriculturists
- Stipends and pensions
- Books of professionals like lawyers and doctors
Case Law: Radha Kishan v. State of UP (1963) – Attachment must be lawful and not arbitrary.
Procedure for Attachment
1. Filing of Execution Petition
Decree-holder files an execution petition under Section 51 CPC.
2. Notice to Judgment-Debtor
Court issues a notice to the debtor to show cause why the decree should not be executed.
3. Order for Attachment
If the debtor fails to comply, the court passes an attachment order.
4. Mode of Attachment
- Movable Property: Seizure by court officer and inventory preparation
- Immovable Property: Proclamation and affixation of attachment notice
- Salaries: Direction to employer to withhold part of salary
- Bank Accounts: Freeze order to the concerned bank
Sale of Attached Property
When attachment alone is insufficient, the court may order sale of the attached property to recover the decree amount.
Steps in Sale of Attached Property
1. Proclamation of Sale (Order 21 Rule 66 CPC)
- Public notice issued with details:
- Description of property
- Date and place of sale
- Estimated value
2. Method of Sale
- Public auction conducted by court or its officer
3. Conduct of Sale
- Bidding process takes place
- Highest bidder wins
- Sale confirmed by court
4. Delivery of Property
- Movables: Direct handover
- Immovables: Possession transferred by the court
5. Distribution of Sale Proceeds
- Applied toward satisfaction of decree
- Surplus, if any, returned to judgment-debtor
Case Law: Desh Bandhu Gupta v. N.L. Anand (1994) – Proper notice is essential before sale; else sale is void.
Setting Aside Sale
Under Order 21 CPC, a sale can be set aside on grounds such as:
- Fraud
- Material irregularity
- Lack of notice
Must be filed within 60 days of the sale.
Safeguards for Judgment-Debtor
- Right to receive notice before attachment or sale
- Right to object to attachment (Order 21 Rule 58)
- Right to pay the decretal amount and stop the sale
- Right to get excess amount (if any) refunded
Summary Table: Attachment and Sale Process
| Stage | Description |
|---|---|
| Execution Petition | Filed by decree-holder under Section 51 CPC |
| Notice to Debtor | Issued by court to explain why execution should not proceed |
| Attachment Order | Court orders seizure or restriction on property |
| Sale Proclamation | Public announcement with details of sale |
| Auction Sale | Conducted by court officials; highest bidder wins |
| Confirmation & Delivery | Court confirms sale and delivers possession |
| Sale Proceeds | Applied to decree; excess refunded to judgment-debtor |
