Buying a property is not as simple as it sounds. The process involves a lot of research and checks on multiple levels. In fact, a property might be involved in a legal dispute, which could delay or even invalidate the sale. In such a scenario, how can buyers protect their rights? The answer is to be aware of the essential legal terms like attachment of property under CPC.
Continue reading as 99acres explains the meaning of attachment of property under CPC and highlights some of the landmark Supreme Court Judgements.
Defining attachment of property under CPC
Attachment of property under the Code of Civil Procedure (CPC) refers to a legal process to seize or take control of a person’s property to secure a judgement. This is done to prevent the defendant from disposing or hiding any asset that may impact a court’s judgement. Property attachment acts as a form of security for the complainant (plaintiff), ensuring the property is available to meet the judgement. The rules for attachment are defined under the Code of Civil Procedure (CPC), which governs civil court cases in India.
Types of attachments
Based on the jurisdiction’s laws and specifics of the case, the property may be attached before or after a judgement is made. Let’s understand both type of attachments below.
Attachment before judgement: This preventive measure is taken before the final decision to ensure the property remains available to satisfy the decree.
Attachment in the execution of a decree: It occurs after a court has issued a decree and seizes the property of a judgement debtor (a person who has lost the case). This process ensures that the judgement debtor’s assets are available to justify the court’s judgement.
Now, how are the court orders executed? Order 21 of CPC executes decrees and orders. Let’s delve further into understanding the same.
Order 21 for attachment of property in CPC
Order 21 of Code of Civil Procedure (CPC) involves executing the court orders, which also include the attachment of property. It defines the detailed rules and procedures for enforcing court judgements for different asset types such as movable, immovable, wages and bank accounts.
Here's a detailed overview of the relevant rules under Order 21 concerning the attachment of property:
| Rule Number | Subject |
|---|---|
| Rule 41 | Examination of Judgment Debtor |
| Rule 42 | Attachment in the Case of Decree for Rent or Mesne Profits or other matter |
| Rule 43 | Attachment of Movable Property |
| Rule 44 | Attachment of Agricultural Produce |
| Rule 46 | Attachment of Debt, Share, and Other Property Not in Possession of Judgment Debtor |
| Rule 47 | Attachment of Property in Custody of Court or Public Officer |
| Rule 48 | Attachment of Salary or Allowances of Servant of the Government or Railway Company or Local Authority |
| Rule 49 | Attachment of Partnership Property |
| Rule 50 | Execution of Decree against Firm |
| Rule 51 | Attachment of Negotiable Instruments |
| Rule 52 | Attachment of Property in Custody of Court or Public Officer |
| Rule 54 | Attachment of Immovable Property |
| Rule 55 | Removal of Attachment after Satisfaction of Decree |
Also read: How to prevent sale of disputed property in India?
Supreme Court Judgement on attachment of property under CPC
Kancherla Lakshminarayana vs Mattaparthi Syamala & Ors. (2008)
In this case, Kancherla Lakshminarayana filed a lawsuit against Mattaparthi Syamala and others. He feared that the defendants might try to sell or hide their property to avoid paying any potential judgement. Therefore, he requested the court to attach (seize) the defendants' property before the decision was issued. This is known as "attachment before judgement" under the Code of Civil Procedure (CPC), specifically under Order 38.
This case highlights the role and importance of property attachment under the CPC as a tool to balance the interests of the plaintiff and the defendant, ensuring fairness and justice in civil litigation.
In conclusion, different mechanisms under the CPC govern civic cases in India, and property attachment is among them. Understanding the same is inevitable for buyers, as it directly affects the security and legality of property transactions. Awareness of such legalities is the key to avoiding disputes, resulting in safe and secure property transactions.
