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Attachment and sale of property in Execution of Decree

 Attachment and sale of property in Execution of Decree

  • It is considered as execution of decree against property of the judgement debtor. 

  • Rules governing attachment: 

    • A warrant of attachment is issued by the Court in case a party neglects the degree or if a party dishonestly transfers, conceals or removes his property from the territorial jurisdiction or his ownership.

    • Property that cannot be attached is laid down in Section 60. 

    • Subject to these exceptions, all saleable property can be attached. 

    • Saleable property can be 

  • movable 

  • immovable: Attachment is through an order prohibiting the judgement debtor from transferring or dealing in the property (injunction). This court order is affixed on a conspicuous part of the property and at the court house. This affixation of court order is called proclamation. 

  • If a claim is raised related  to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, then (Rule 58):

  • The execution will be done by the execution court.

  • All questions can be adjudicated and shall be determined by the Court dealing with the claim and not by a separate suit.

  • Rule 58 also lays down the reliefs available

  • If a decree is passed under this rule, a person has the right to file an appeal against the same. If the court refuses to entertain the claim, then the party may institute a suit. 

  • An advertisement for sale of property must contain:

  • Details of the property

  • Intended date, time and place of sale

  • The sale will be conducted by way of an auction

  • No sale should take place until expiry of 15 days from the date of the advertisement for immovable property and at least 7 days for movable property.

  • If an advertisement has been given out for the property and the claim has been raised subsequently, then one can have a stay of sale for the same (Rule 59).

  • Consent decree : if one satisfies the decree on behalf of the principal debtor, then he can step into the shoes of judgement creditor and hold a claim against the debtor for the amount which he had paid on debtor’s behalf i.e. subrogation.  

  • If there is an irregularity in the conduct of the sale of attached property, then the sale will not be set aside. Individual seeking relied against such irregularity will have to raise a claim by way of suit against the person responsible for irregularity. 

  • Only the purchaser can file a suit for specific performance for possession of property if he does not get it at the end of sale or compensation in default of possession. 

  • If the purchaser is resisted by taking possession of the property, he may make an application to the court complaining of such resistance and the court may fix a day for investigation of the matter and will summon the party against whom application is made to appear and answer the same.

  • Precept : If the property is situated beyond the territorial jurisdiction of the execution court and is required to be attached, then the court on application of the decree holder will issue a precept to the court in whose jurisdiction the property lies to attach the party. 


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