Sale & Attachment of Property in Execution Decree

Topics: Personal property, Real estate, Law Pages: 14 (4661 words) Published: January 18, 2012
Chapter – I

Introduction & Research Methodology

1. 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. 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’. 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 benefits out 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 decree holder does not by virtue of the judgment, get a right to the property, he cannot get the right by way of filing 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. Research Methodology:

The research scheme undertaken by the researcher is comprised of doctrinal study of the books available at the library of the Institute of Law and besides that the researcher has also taken the help of the internet to look into some of the Interpretation of some cases and principle of natural justice and the researcher the also taken in view the various cases which are relevant for the research work.

3. Research Hypothesis:

• What are the conditions under which attachment & sale of property becomes necessary, can it be done & how it is done.

4. Aim of Research:

The aim of this project is to find out why sometimes it becomes very much necessary for the attachment of property even after the judgement has been declared & to examine the different ways under Code of Civil Procedure which provide for sale and attachment of property.

5. Scope & Limitation of Research:

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.

Chapter – II

Attachment of Property

1. General:

Section 51 (b) empowers the court to order execution of decree by attachment and sale or by sale without attachment of any property. The court is competent to attach the property if it is situated within the local limits of the jurisdiction of the court.[1] It is immaterial that the place of business of the judgement – debtor is outside the jurisdiction of the court. The words attachment and sale in clause (b) of section 51 are to be read disjunctively. Therefore, the attachment...

Bibliography: 1. Basu’s , ‘The Code of Civil Procedure’, Ashok Law House, New Delhi, 10th Edn., Vol.2, 2007.
2. Majumdar’s, ‘Commentary on the Code of Civil Procedure, 1908’, Orient Publishing Company, 6th Edn., Vol.1, 2010.
3. Justice Nandi & Gupta Sen, ‘The Code of Civil Procedure’, Kamal Law House, Kolkata, Vol.1, 2009.
4. Rao’s V.J., ‘The Code of Civil Procedure, 1908’, ALT Publication’s, 5th Edn., Vol.1, 2008.
6. Prasa, B.M., & Sarvaria, S.k., “Mulla The Code Of Civil Procedure”,14th Edn., Lexis Nexis ButterWorths Wadhwa,Nagpur, 2011.
[2] Desh Bandhu v. N.L. Anand, (1994) 1 SCC 131.
[7] AIR 1965 A.P. 52
[8] (1984) 1 SCC 137
[9] ‘Saleable’ means saleable by auction under the orders of a Court
[10] (1994) 1 SCC 131
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